DiGiorgi v. Marzocchi

136 A.D.3d 638, 24 N.Y.S.3d 221

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2016
• Docket: 2014-09545
• Status: Published

Opinion

— Appeal from an order of the Supreme Court, Suffolk County (Stephen M. Behar, J.), dated July 15, 2014. The order denied that branch of the plaintiff’s motion which was to vacate a stay of a Family Court proceeding the plaintiff had commenced to enforce an order of the Supreme Court, Suffolk County (McNulty, J.), dated April 1, 2013.

Ordered that the order dated July 15, 2014, is affirmed, without costs or disbursements.

The parties in this matrimonial action were divorced by judgment entered July 29, 2003. By order dated April 1, 2013, the Supreme Court granted the plaintiffs motion to direct the defendant to pay a pro rata share of the educational expenses of the parties’ son. The plaintiff subsequently commenced a proceeding in the Family Court, Suffolk County, to enforce the order dated April 1, 2013. The defendant obtained a stay of the Family Court proceeding pending the determination of her motion in the Supreme Court, inter alia, to vacate the April 1, 2013, order, and the plaintiff moved, among other things, to vacate the stay.

Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in denying that branch of his motion which was to vacate the stay of the proceeding he commenced to enforce the April 1, 2013, order pending the hearing and determination of the defendant’s motion to vacate that order. Neither the rules applicable to the issuance of preliminary injunctions (see CPLR 6301; see generally Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839 [2005]; Matter of Armanida Realty Corp. v Town of Oyster Bay, 126 AD3d 894 [2015]) nor the provisions of CPLR 6312 are applicable to this matter.

The plaintiff’s remaining contentions are either without merit or not properly before this Court.

Mastro, J.P., Leventhal, Cohen and LaSalle, JJ., concur.