Schammel v. Schammel

• Decision Date: 15 May 1990
• Parties: Leonard SCHAMMEL, Plaintiff-Respondent, v. Marilyn SCHAMMEL, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 336

555 N.Y.S.2d 336

161 A.D.2d 407

Leonard SCHAMMEL, Plaintiff-Respondent, v. Marilyn SCHAMMEL, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 15, 1990.

W.S. Beslow, New York City, for plaintiff-respondent.

M. Dollinger, Carle Place, for defendant-appellant.

Before KUPFERMAN, J.P., and ROSS, ROSENBERGER, KASSAL, and SMITH, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper) of the Supreme Court, New York County (Xavier Riccobono, J., pursuant to CPLR 9002; Alfred Ascione, J. at trial) entered July 7, 1989, which inter alia granted both parties a divorce on the ground of cruel and inhuman treatment and resolved issues of marital property distribution; and order of the same Court (Glen, J.) entered November 21, 1989, which, inter alia, denied defendant's request to have a hearing on the circumstances surrounding the signing of Justice Ascione's November 29, 1988 decision, are unanimously affirmed, without costs.

In this joint matrimonial action, the parties were granted a joint divorce upon the ground of cruel and inhuman treatment towards each other. The only issues on appeal concern the economic distribution of marital assets coupled with the Court process by which the divorce judgment was issued.

Although the 10-day trial in this action took place in September-October 1986, a decision on the matter was not rendered until November 29, 1988. The Court, which was in the best position to observe the demeanor of the witnesses and assess their ability to tell the truth, credited plaintiff-husband's testimony and, inter alia, directed the sale of the parties' North Haven marital vacation home, valued at $450,000, the net proceeds of which are to be divided 55% to defendant-wife and 45% to plaintiff-husband; awarded plaintiff 100% interest in Parcel No. 1 located in East Hampton, plaintiff's general partnership interests in Ocean Associates, and Watch Case Factory Associates; and directed that all maintenance arrears be deducted from plaintiff's 45% share in the net proceeds of the North Haven property. Before a judgment could be entered, Justice Ascione died.

On February 28, 1989 defendant's motion for reargument and reconsideration of the Trial Court's decision was denied by Justice Kristen Booth Glen on the ground that the proper remedy for review of a decision gendered by a Justice of coordinate jurisdiction was a direct appeal. Upon the entry of judgment pursusant to the mechanism set forth in CPLR 9002, defendant moved before Justice Glen to set aside the decision, vacatur of judgment (citing CPLR 4404(b) and 5015) and for a full fact-finding hearing on the circumstances surrounding the preparation and signing of the decision. Defendant alleged that Justice Ascione's terminal illness prevented him from supervising the preparation and signing of the decision, that the decision was a wholesale verbatim adoption of plaintiff's post-trial brief (see, Capasso v. Capasso, 119 A.D.2d 268, 506 N.Y.S.2d 686, appeal after remand, 129 A.D.2d 267, 517 N.Y.S.2d 952, modified, 133 A.D.2d 23, 518 N.Y.S.2d 355, app. dsmd., 70 N.Y.2d 988, 526 N.Y.S.2d 429, 521 N.E.2d 436) and not supported by the evidence. Upon the Court's denial of relief, the appeals from judgment of divorce and Justice Glen's 1989 November order were consolidated.

Defend...