Maybaum v. Maybaum

• Decision Date: 01 November 2011
• Citation: 933 N.Y.S.2d 43,2011 N.Y. Slip Op. 07816,89 A.D.3d 692
• Parties: Simon MAYBAUM, respondent-appellant, v. Nadine MAYBAUM, appellant-respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 07816
89 A.D.3d 692
933 N.Y.S.2d 43

Simon MAYBAUM, respondent-appellant,
v.
Nadine MAYBAUM, appellant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 1, 2011.

[933 N.Y.S.2d 45]

David I. Grauer, White Plains, N.Y., for appellant-respondent.

Most & Kusnetz, LLC, White Plains, N.Y. (Marcia E. Kusnetz of counsel), for respondent-appellant.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.

[89 A.D.3d 692] In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Tolbert, J.), entered December 1, 2010, as denied that branch of her motion which was to direct the plaintiff to make payments to a certain school, denied those branches of her cross motion which were pursuant to CPLR 3211(b) to dismiss the first, third, and fourth affirmative defenses asserted in the plaintiff's reply to her counterclaim, and pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) § 130–1.1 to impose sanctions on the plaintiff and/or the plaintiff's attorney, and granted those branches of the plaintiff's motion which were to strike stated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateral

[933 N.Y.S.2d 46]

estoppel, and equitable estoppel, to strike stated paragraphs of the defendant's counterclaim, in effect, as time-barred, and pursuant to CPLR 3016(c) to strike stated paragraphs of the defendants counterclaim for lack of specificity, and thereupon directed her to serve and file an amended counterclaim, and the plaintiff cross-appeals, as limited by his notice of appeal and brief, from so much of the same order as [89 A.D.3d 693] denied those branches of his motion which were to hold the defendant in civil contempt for her failure to provide an accurate statement of net worth, pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) § 130–1.1 to impose sanctions on the defendant and/or the defendant's attorney, and pursuant to CPLR 3126 to preclude the defendant from contesting the imputation of income to her.

ORDERED that the order is modified, on the law, the facts, and in the exercise of discretion, (1) by deleting the provisions thereof granting those branches of the plaintiff's motion which were to strike stated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateral estoppel, and equitable estoppel, to strike stated paragraphs of the defendant's counterclaim, in effect, as time-barred, and to strike stated paragraphs of the defendant's counterclaim for lack of specificity, and thereupon directing the defendant to serve and file an amended counterclaim, and substituting therefor a provision denying those branches of the motion and vacating that directive, (2) by deleting the provision thereof denying that branch of the defendant's motion which was to direct the plaintiff to make payments to a certain school, and substituting therefor a provision granting that branch of the motion, pendente lite, and (3) by deleting the provision thereof denying those branches of the defendant's cross motion which were pursuant to CPLR 3211(b) to dismiss the third and fourth affirmative defenses asserted in the plaintiff's reply to the defendant's counterclaim, and substituting therefor a provision granting those branches of the defendant's cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a determination of the outstanding issues with all deliberate speed.

The defendant wife and the plaintiff husband were married on March 13, 1995. Two children were born of the marriage.

In April 2010, the defendant commenced a proceeding pursuant to article 8 of the Family Court Act, alleging that the plaintiff committed certain family offenses. Thereafter, the plaintiff commenced this action for a divorce and ancillary relief on the ground of cruel and inhuman treatment. On April 27, 2010, the parties appeared before the Family Court, Westchester County, and entered into a stipulation on the record. In effect, the parties stipulated that the defendant was withdrawing the pending family offense petition, with prejudice, in exchange for the plaintiff giving the defendant exclusive use of the marital residence. The parties agreed that the stipulation was binding in the action for a divorce pending in the Supreme Court.

[89 A.D.3d 694] Subsequently, the defendant answered the complaint in this action and asserted a counterclaim for a divorce and ancillary relief on the ground of cruel and inhuman treatment. In reply, the plaintiff asserted affirmative defenses, including, as a third affirmative defense, that the defendant's counterclaim was insufficiently specific to meet the requirements of CPLR 3016(c), and, as a fourth affirmative defense, that the counterclaim was barred, in whole or

[933 N.Y.S.2d 47]

in part, by the doctrines of res judicata, collateral estoppel, and equitable estoppel, based on the stipulation between the parties.

The parties made several motions and cross motions for relief. The Supreme Court, inter alia, denied that branch of the defendant's motion which was to direct the plaintiff to make payments to a certain school, denied those branches of the defendant's cross motion which were pursuant to CPLR 3211(b) to dismiss the first, third,...