O'Sullivan v. O'Sullivan

• Decision Date: 15 July 1994
• Citation: 206 A.D.2d 960,614 N.Y.S.2d 828
• Parties: Kieran D. O'SULLIVAN, Appellant, v. Joan M. O'SULLIVAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 828

614 N.Y.S.2d 828

206 A.D.2d 960

Kieran D. O'SULLIVAN, Appellant, v. Joan M. O'SULLIVAN, Respondent.

Supreme Court, Appellate Division,

Fourth Department.

July 15, 1994.

Gassman & Fisher by Florence Fass, Garden City, for appellant.

Herchenroder & Herman by John Herchenroder, Hempstead, for respondent.

Before GREEN, J.P., and BALIO, FALLON, CALLAHAN and DAVIS, JJ.

MEMORANDUM:

Plaintiff waived his Statute of Limitations defense by failing to raise it in a timely manner (see, CPLR 3211[e]; Matter of Augenblick v. Town of Cortlandt, 66 N.Y.2d 775, 777, 497 N.Y.S.2d 363, 488 N.E.2d 109, rearg. denied 67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558; Itzkowitz v. Town Bd. of Town of Niagara, 139 A.D.2d 932, 527 N.Y.S.2d 915). Plaintiff's argument that the provisions of CPLR 3211 are inapplicable to this proceeding, in reliance on Consentino v. Sweeney, 143 A.D.2d 971, 533 N.Y.S.2d 593, is not properly before us because that argument is raised for the first time in plaintiff's reply brief. "The practice of raising a new substantive issue in a reply brief at a time when an adversary can no longer respond to it is improper" (People v. Minota, 137 A.D.2d 837, 838, 525 N.Y.S.2d 300, rev. denied 71 N.Y.2d 1030, 530 N.Y.S.2d 565, 526 N.E.2d 57; see, State Farm Fire & Cas. Co. v. LiMauro, 103 A.D.2d 514, 521-522, 481 N.Y.S.2d 90, affd 65 N.Y.2d 369, 492 N.Y.S.2d 534, 482 N.E.2d 13). In any event, plaintiff's reliance on Consentino is misplaced because the facts of that case are distinguishable from those in this case. Plaintiff failed to raise the Statute of Limitations defense until after Supreme Court rendered its decision on defendant's postjudgment application pursuant to Domestic Relations Law § 244 and, only then, in response to defendant's motion to reargue. Thus, plaintiff's failure to raise the defense in a timely manner deprived defendant of the opportunity to challenge its applicability (see, Szigyarto v. Szigyarto, 64 N.Y.2d 275, 280, 486 N.Y.S.2d 164, 475 N.E.2d 777).

Lastly, plaintiff's argument that a 6% interest rate is applicable to that portion of the arrears accruing prior to June 25, 1981 is advanced for the first time on appeal and thus, the argument is not preserved for review (see, Nemia v. Nemia, 124 A.D.2d 407, 507 N.Y.S.2d 768, lv. denied 69 N.Y.2d 611, 517 N.Y.S.2d 1025, 511 N.E.2d 84). In any event, we conclude that the court properly awarded defendant interest on the judgment for arrears pursuant to Domestic...