Mauro v. Mauro
| Decision Date | 27 March 1989 |
| Citation | 539 N.Y.S.2d 432,148 A.D.2d 684 |
| Parties | Marie MAURO, Appellant-Respondent, v. Nicholas P. MAURO, Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Nathan Horowitz, White Plains, for appellant-respondent.
Katz & Klein, White Plains (Ascher Katz, of counsel), for respondent-appellant.
Before BROWN, J.P., and EIBER, SULLIVAN and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action in which the parties were previously divorced, the plaintiff wife appeals from so much of an order of the Supreme Court, Westchester County (Gurahian, J.), dated April 17, 1987, as denied her cross motion to vacate an amended judgment of divorce, dated December 31 1985. The defendant husband cross-appeals from so much of the same order as denied his motion to vacate a stipulation of settlement dated October 20, 1986 and an undated order of the same court entered thereon.
ORDERED that the order is modified by deleting the provision which denied the defendant's motion to vacate the stipulation of settlement and the order entered thereon; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendant, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.
The defendant husband sought to vacate a stipulation of settlement and the order entered thereon on the ground that the plaintiff wife was guilty of fraud in the procurement of the settlement. According to the husband's motion papers, he agreed to settle the parties' financial disputes by accepting, inter alia, the balance which remained in one particular bank account. Unbeknownst to the husband, however, the wife had closed this account several months prior to the execution of the stipulation. Although the wife alleged that she had forgotten, at the time she entered into the stipulation, that she had withdrawn the funds and closed the account upon which the stipulation was primarily based, we find that an evidentiary hearing is necessary to determine whether the wife's conduct constituted an act of fraud sufficient to set aside the stipulation of settlement and the order entered thereon (see, Shaw v. Shaw, 97 A.D.2d 403, 467 N.Y.S.2d 231).
The wife's motion to vacate the amended judgment of divorce on the grounds of newly discovered evidence and excusable default was, however, properly denied. The wife failed to demonstrate that the 1984 bank...
To continue reading
Request your trial
-
Abbott v. Crown Mill Restoration Dev., LLC
... ... Simmonds, 172 A.D.2d 1081, 1081, 569 N.Y.S.2d 258;Mauro v. Mauro, 148 A.D.2d 684, 685, 539 N.Y.S.2d 432).Here, the damages inquest was initially scheduled for March 2008, and then adjourned to July 2008 ... ...
-
Peroni v. Peroni
... ... Crown Mill Restoration Dev., LLC , 109 A.D.3d 1097, 1099, 972 N.Y.S.2d 117 [4th Dept. 2013] ; Mauro v. Mauro , 148 A.D.2d 684, 685, 539 N.Y.S.2d 432 [2d Dept. 1989] ; cf. Bird v. Bird , 77 A.D.3d 1382, 1383, 908 N.Y.S.2d 317 [4th Dept. 2010] ) ... ...
-
Noga v. Noga
... ... failed to offer any reason why he did not act more expeditiously in obtaining the information which he now seeks to submit as evidence (see, Mauro v. Mauro, 148 A.D.2d 684, 685, 539 N.Y.S.2d 432). Under these circumstances, we cannot say that Supreme Court abused its discretion in denying the ... ...
-
Sperbeck v. Sperbeck
... ... , plaintiff's argument that he has offered newly discovered evidence entitling him to relief under CPLR 5015(a)(2) is without merit (see, Mauro v. Mauro, 148 A.D.2d 684, 539 N.Y.S.2d 432; see also, Cornwell v. Safeco Ins. Co. of Am., 42 A.D.2d 127, 346 N.Y.S.2d 59) ... ...