Turco v. Turco

• Decision Date: 07 May 2014
• Citation: 2014 N.Y. Slip Op. 03257,117 A.D.3d 719,985 N.Y.S.2d 261
• Parties: Joanne Capace TURCO, appellant-respondent, v. James TURCO, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 719
985 N.Y.S.2d 261
2014 N.Y. Slip Op. 03257

Joanne Capace TURCO, appellant-respondent,
v.
James TURCO, respondent-appellant.

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

May 7, 2014.

[985 N.Y.S.2d 263]

Sklar & Prusinowski, Hempstead, N.Y. (Cindy A. Prusinowski and Alexander Potruch of counsel), for appellant-respondent.

Gassman Baiamonte Betts, P.C. Garden City, N.Y. (Stephen Gassman of counsel), for respondent-appellant.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, COLLEEN D. DUFFY, JJ.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County (Diamond, J.), entered March 30, 2011, which, upon a decision of the same court dated November 10, 2010, and an amended decision of the same court dated November 18, 2010, made after a nonjury trial, inter alia, (1) upon consent, awarded the plaintiff a divorce on the ground of constructive abandonment, (2) failed to award the plaintiff a marital share of the defendant's interest in his commercial bakery business, (3) awarded the defendant a credit against the proceeds of the sales of three marital properties for 100% of the amount he paid to reduce the mortgage principal on these properties during the pendency of the action, (4) awarded the plaintiff maintenance in the sum of only $48,000 per year for a period of seven years, and (5) awarded the plaintiff child support in the sum of only $548.38 per week, and the defendant cross-appeals, as limited by his brief, from stated portions of the judgment which, inter alia, failed to direct that the plaintiff is responsible for the carrying charges on the marital residence during the post judgment period of exclusive occupancy.

ORDERED that the appeal from so much of the judgment as, upon consent, awarded the plaintiff a divorce on the

[985 N.Y.S.2d 264]

ground of constructive abandonment is dismissed; and it is further,

ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by adding a provision thereto awarding the plaintiff 14.5% of the defendant's interest in his commercial bakery business; (2) by reducing the award to the defendant of a credit against the proceeds of the sales of three marital properties from 100% to 50% of the amount he paid to reduce the mortgage principal on these properties during the pendency of the action, (3) by adding a provision thereto directing that the plaintiff is responsible for the carrying charges on the marital residence during the post judgment period of exclusive occupancy, (4) by adding a provision thereto awarding the plaintiff a credit against the proceeds of the sale of the marital residence for 100% of the amount she pays to reduce the mortgage principal from the date of the judgment until the sale of the marital residence, (5) by deleting the provision thereof awarding the plaintiff maintenance in the sum of $48,000 per year for a period of seven years, and substituting therefor a provision awarding the plaintiff maintenance in the sum of $6,000 per month for a period of seven years, and (6) by deleting the provision thereof awarding the plaintiff child support in the sum of $548.38 per week, and substituting therefor a provision awarding the plaintiff child support in the sum of $914.55 per week, subject to reduction to the sum of $621.89 per week when the parties' eldest child reaches the age of 21; as so modified, the judgment is affirmed insofar as reviewed on the appeal and insofar as cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an amended judgment.

The plaintiff's appeal from so much of the judgment as awarded her a divorce on the ground of constructive abandonment must be dismissed because that portion of the judgment was entered upon her consent, and, thus, she is not aggrieved thereby ( seeCPLR 5511; Tongue v. Tongue, 61 N.Y.2d 809, 810, 473 N.Y.S.2d 950, 462 N.E.2d 127;Dudla v. Dudla, 50 A.D.3d 1255, 1256–1257, 857 N.Y.S.2d 254;Saleh v. Saleh, 40 A.D.3d 617, 617, 836 N.Y.S.2d 201;Shifer v. Shifer, 27 A.D.3d 549, 549, 810 N.Y.S.2d 361).

“The determination of a motion for leave to voluntarily discontinue an action pursuant to CPLR 3217(b) rests within the sound discretion of the court” ( Wells Fargo Bank, N.A. v. Chaplin, 107 A.D.3d 881, 883, 969 N.Y.S.2d 67;see Tucker v. Tucker, 55 N.Y.2d 378, 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050). “In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted” ( Wells Fargo Bank, N.A. v. Chaplin, 107 A.D.3d at 883, 969 N.Y.S.2d 67 [internal quotation marks omitted]; see Tucker v. Tucker, 55 N.Y.2d at 383–384, 449 N.Y.S.2d 683, 434 N.E.2d 1050). Here, the Supreme Court providently exercised its discretion in denying the plaintiff's application , in effect, to voluntarily discontinue the action, made on the first day of trial, since the record supports a finding that she was merely attempting to avoid an adverse order of the court ( see Kaplan v. Village of Ossining, 35 A.D.3d 816, 817, 827 N.Y.S.2d 278;Casey v. Custom Crushing & Materials, 309 A.D.2d 726, 727, 765 N.Y.S.2d 268), and there was a showing that the defendant would be prejudiced by such discontinuance.

“The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court”

[985 N.Y.S.2d 265]

(Matter of Anthony M., 63...