Mula v. Mula

• Decision Date: 15 June 2017
• Docket Number: 523168.
• Citation: 59 N.Y.S.3d 146,151 A.D.3d 1326
• Parties: Paul J. MULA, Respondent, v. Jo–Anne MULA, Appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1326

59 N.Y.S.3d 146

Paul J. MULA, Respondent,

v.Jo–Anne MULA, Appellant.

523168.

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

June 15, 2017.

Larkin, Ingrassia & Tepermayster, LLP, Newburgh (Azra J. Khan of counsel), for appellant.

Blatchly & Simonson, New Paltz (Bruce D. Blatchly of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, EGAN JR., DEVINE and MULVEY, JJ.

McCARTHY, J.

Appeal from an order of the Supreme Court (McGinty, J.), entered January 28, 2016 in Ulster County, which granted plaintiff's motion to renew and denied defendant's cross motion for an order directing plaintiff to pay certain expenses.

Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were married in November 1968. During the course of their marriage, the parties acquired two condominiums in St. Croix, unit N–3 and unit J–10. In January 2011, the husband commenced the underlying divorce action. Subsequently, a trial ensued and, in December 2014, Supreme Court granted, among other things, a divorce and determined that the parties' two St. Croix condominiums were marital property that should be sold, with "[t]he net proceeds of the sale ... divided evenly between the parties." Thereafter, the husband appealed and the wife cross-appealed. In February 2015, while the appeals were pending, the wife moved, by order to show cause, for an order "clarifying" the term "net proceeds," arguing that proceeds from sales of the condominiums should be used to satisfy a margin loan taken out against her separate investment, which she alleged constituted the funds used to purchase the condominiums, prior to being divided between her and the husband. The husband opposed the motion. In an April 2015 order, Supreme Court determined that it needed more information "to clarify how net proceeds should be calculated ... as it specifically related to the St. Croix condominiums," and determined that a hearing should be held on the matter. That hearing occurred in August 2015.

In September 2015, before Supreme Court could render a further decision, this Court determined that, among other things, unit J–10 was the wife's separate property, but that unit N–3 was marital property, and, more specifically, that "unit N–3 ... was purchased with the use of marital property as collateral" ( 131 A.D.3d 1296, 1301 n. 5, 16 N.Y.S.3d 868 [2015] ). In light of this Court's decision, the husband moved to renew his opposition to the wife's motion to "clarify." Subsequently, the wife cross-moved for an order directing the husband to, among other things, pay his share of a margin loan allegedly used to acquire unit N–3. In a January 2016 order, Supreme Court granted the husband's motion and determined, among other things, that he had no obligation with regard to the payment of the margin loan. As such, the court denied the wife's cross motion. The wife appeals, and we affirm.

As an initial matter, "a motion to renew must be ‘based upon new facts not offered in the prior motion that would change the prior determination ... [and] shall contain reasonable justification for the failure to present such facts on the prior motion’ " ( Kahn v. Levy, 52 A.D.3d 928, 929, 859 N.Y.S.2d 308 [2008], quoting CPLR 2221[e] ). Here, the husband relied on this Court's decision, rendered after Supreme Court held a hearing on the wife's motion to "clarify," which unambiguously determined that "unit N–3 ... was purchased with the use of marital property as collateral" ( 131 A.D.3d at 1301 n. 5, 16 N.Y.S.3d 868 ). As this Court's findings contradicted the wife's claim that the parties financed the purchase of unit N–3 through a margin loan taken out against her separate property, the court did not abuse its discretion in granting the husband's motion to renew (see generally Hurrell–Harring v. State of New York, 112 A.D.3d 1217,...