Petritis v. Petritis

Citation131 A.D.2d 651,516 N.Y.S.2d 734
PartiesChristine PETRITIS, Respondent-Appellant, v. George PETRITIS, Appellant-Respondent.
Decision Date15 June 1987
CourtNew York Supreme Court Appellate Division

Landa & Picard, Lake Success (Jay Landa and Linda Hirsch, of counsel), for appellant-respondent.

Before THOMPSON, J.P., and BROWN, NIEHOFF and SPATT, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were divorced by a judgment entered September 26, 1979, (1) the defendant husband appeals from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Roncallo, J.), dated July 3, 1986, as granted the plaintiff wife's application to enter a money judgment against him in the sum of $9,301.55 plus $10 costs and disbursements, and directed him to pay the plaintiff wife $500 in counsel fees and (2) the plaintiff wife cross-appeals from so much of the same order and judgment as, inter alia, denied her application for an upward modification of support payments.

ORDERED that the order and judgment is reversed insofar as appealed from by the defendant husband, without costs or disbursements, so much of the plaintiff wife's application as sought to recover arrears that accrued prior to May 27, 1980, is denied as time-barred, and the matter is remitted to the Supreme Court, Nassau County, for a hearing with respect to alimony arrears accruing within six years of the institution of the application, particularly with respect to the issues of whether the plaintiff wife was cohabiting with an adult male or whether she waived all or part of the alimony so accrued, and her entitlement to an award of counsel fees, and without prejudice to the plaintiff wife to seek enforcement of the provisions of the stipulation of settlement by way of a plenary action; and, it is further,

ORDERED that the cross appeal is dismissed, without costs or disbursements, for failure to perfect the same in accordance with the rules of this court (22 NYCRR 670.20[d], [f] ).

The plaintiff wife made an application pursuant to Domestic Relations Law § 244 to recover alimony arrearages pursuant to a judgment of divorce entered September 26, 1979 and reimbursement for medical expenses and nursery school expenses pursuant to a settlement agreement which was not merged in the divorce judgment. The trial court directed, inter alia, entry of judgment in the principal amount of $9,301.55, representing alleged arrearages under both the settlement agreement and the divorce judgment and granted the plaintiff $500 in counsel fees pursuant to Domestic Relations law § 238.

The plaintiff was not entitled to obtain entry of a money judgment on the stipulation, which was not merged in the judgment of divorce, by means of a motion made pursuant to Domestic Relations Law § 244. The provisions of that section are applicable only where the judgment of divorce or a subsequent order contain specific language directing payment of a sum of money (Baker v. Baker, 66 N.Y.2d 649, 651, 495 N.Y.S.2d 959, 486 N.E.2d 817; Thompson v. Lindblad, 125 A.D.2d 460, 509 N.Y.S.2d 389; Baratta v. Baratta, 122 A.D.2d 3, 5, 504 N.Y.S.2d 175; Sileo v. Sileo, 115 A.D.2d 535, 536, 495 N.Y.S.2d 728). The judgment of divorce directed payment of a sum of money only with respect to child support and alimony and, therefore, on her application the plaintiff was entitled to a determination only as to her claim for alimony arrearages. The proper remedy for the plaintiff's remaining claims arising under the stipulation agreement would be the commencement of a plenary action (see, Baker v. Baker, supra; Thompson v. Lindblad, supra ).

The application for alimony arrearages is governed by a six-year Statute of Limitations unless the arrearages have been reduced by further proceedings to judgment (see, CPLR 213[1]; Tauber v. Lebow, 65 N.Y.2d 596, 493 N.Y.S.2d 1008, 483 N.E.2d 1140; Welch v. Welch, 130 A.D.2d 656, 515 N.Y.S.2d 587; Story v. Brady, 114 A.D.2d 1026, 495 N.Y.S.2d 464). Therefore, the judgment appealed from erroneously awarded the plaintiff alimony arrears which accrued more than six years prior to commencement of the instant application, i.e. prior to May 27, 1980.

The defendant argues that the alimony payments were suspended for the period commencing November 1,...

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26 cases
  • Nicol v. Nicol
    • United States
    • New York Supreme Court Appellate Division
    • 31 Enero 2020
    ...389 (2d Dept. 1986) ). Instead, the proper procedure "would be the commencement of a plenary action" ( Petritis v. Petritis, 131 A.D.2d 651, 653, 516 N.Y.S.2d 734 (2d Dept. 1987) ). Thus, we do not address the merits of plaintiff's contention (see generally Anonymous v. Anonymous, 27 A.D.3d......
  • Haberman v. Haberman
    • United States
    • New York Supreme Court Appellate Division
    • 26 Junio 1995
    ...an agreement or decree may be waived (see, Maule v. Kaufman, 33 N.Y.2d 58, 62, 349 N.Y.S.2d 368, 304 N.E.2d 234; Petritis v. Petritis, 131 A.D.2d 651, 653, 516 N.Y.S.2d 734; Thompson v. Lindblad, 125 A.D.2d 460, 461, 509 N.Y.S.2d 389) * * * 'waiver is not created by " '[n]egligence, oversig......
  • Guerriere v. Guerriere
    • United States
    • New York Supreme Court Appellate Division
    • 21 Diciembre 1992
    ...244; Baker v. Baker, 66 N.Y.2d 649, 495 N.Y.S.2d 959, 486 N.E.2d 817; Vale v. Vale, 146 A.D.2d 696, 537 N.Y.S.2d 195; Petritis v. Petritis, 131 A.D.2d 651, 516 N.Y.S.2d 734; cf., Cree v. Cree, 156 A.D.2d 419, 548 N.Y.S.2d ...
  • Joan Marie D. v. Harold G.
    • United States
    • New York Supreme Court Appellate Division
    • 6 Noviembre 1989
    ...of counsel alone will not suffice in the absence of a stipulation regarding the amount due (see, e.g., Petritis v. Petritis, 131 A.D.2d 651, 654, 516 N.Y.S.2d 734). Rather, the reasonable amount and nature of the claimed services must be established at an adversarial hearing (see, e.g., Kum......
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