Avelluto v. Avelluto

Appellate Division of the Supreme Court of New York

Avelluto v. Avelluto

5 A.D.3d 297, 773 N.Y.S.2d 540, 2004 N.Y. App. Div. LEXIS 3461

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 25, 2004

StatusPublished

This text of 5 A.D.3d 297 (Avelluto v. Avelluto) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Avelluto v. Avelluto, 5 A.D.3d 297, 773 N.Y.S.2d 540, 2004 N.Y. App. Div. LEXIS 3461 (N.Y. Ct. App. 2004).

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Opinion

Order, Supreme Court, New York County (Laura Visitacion-Lewis, J.), entered March 7, 2003, which, inter alia, awarded plaintiff temporary maintenance, unanimously affirmed, without costs.

Defendant premises his opposition to the award of temporary maintenance upon a waiver of maintenance provision contained in a stipulation entered into in 1993 in a prior matrimonial action commenced by plaintiff in 1991. However, the parties in executing the stipulation contemplated that a divorce judgment would be entered in the action, but the proposed judgment was never timely submitted and because good cause was not shown for this omission, the action was properly dismissed as aban[298]*298doned (see Funk v Barry, 89 NY2d 364 [1996]; cf. Russo v Russo, 289 AD2d 467 [2001]). The 1993 stipulation did not survive the abandonment of the action in which it was made (see Meilak v Meilak, 108 AD2d 975 [1985], lv dismissed 65 NY2d 922 [1985]; cf. Siddiqui v Siddiqui, 118 AD2d 846 [1986]) and is thus of no avail to defendant. Concur—Buckley, P.J., Nardelli, Saxe and Marlow, JJ.

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Order, Supreme Court, New York County (Laura Visitacion-Lewis, J.), entered March 7, 2003, which, inter alia, awarded plaintiff temporary maintenance, unanimously affirmed, without costs.

Defendant premises his opposition to the award of temporary maintenance upon a waiver of maintenance provision contained in a stipulation entered into in 1993 in a prior matrimonial action commenced by plaintiff in 1991. However, the parties in executing the stipulation contemplated that a divorce judgment would be entered in the action, but the proposed judgment was never timely submitted and because good cause was not shown for this omission, the action was properly dismissed as aban[298]*298doned (see Funk v Barry, 89 NY2d 364 [1996]; cf. Russo v Russo, 289 AD2d 467 [2001]). The 1993 stipulation did not survive the abandonment of the action in which it was made (see Meilak v Meilak, 108 AD2d 975 [1985], lv dismissed 65 NY2d 922 [1985]; cf. Siddiqui v Siddiqui, 118 AD2d 846 [1986]) and is thus of no avail to defendant. Concur—Buckley, P.J., Nardelli, Saxe and Marlow, JJ.

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Bluebook (online)

5 A.D.3d 297, 773 N.Y.S.2d 540, 2004 N.Y. App. Div. LEXIS 3461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avelluto-v-avelluto-nyappdiv-2004.

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