Kaminsky v. Kaminsky

Appellate Division of the Supreme Court of New York

Kaminsky v. Kaminsky

44 A.D.2d 583, 353 N.Y.S.2d 242, 1974 N.Y. App. Div. LEXIS 5459

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

DecidedMarch 18, 1974

StatusPublished

This text of 44 A.D.2d 583 (Kaminsky v. Kaminsky) 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

Kaminsky v. Kaminsky, 44 A.D.2d 583, 353 N.Y.S.2d 242, 1974 N.Y. App. Div. LEXIS 5459 (N.Y. Ct. App. 1974).

Pincite

Opinion

In an action for separation, the plaintiff wife appeals from an order of the Supreme Court, Queens County, entered October 12, 1973, which, upon defendant’s motion, (1) vacated three orders of the same court, dated February 20, 1973, June 15, 1973 and August 20, 1973, respectively, (a) the first [584]*584granting plaintiff’s motion for temporary alimony and child support and' a counsel fee, (h) the second adjudging defendant in contempt for disobedience of said first order and (e) the third ordering that defendant be committed to jail for said contempt; and (2) stayed enforcement of said order of August 20, 1973. Order reversed, without costs, and defendant’s motion remitted to Mr. Justice O’Connor pursuant to CPLR 2221. This action was commenced in January, 1973. The order of February 20, 1973 was made by Mr. Justice O’Connor, the order of June 15, 1973 by Mr. Justice Kunzeman and the order of August 20, 1973 by Mr. Justice Fitzpatrick. On August 30, 1973 defendant made the motion which resulted in the order under review before a fourth Judge. His moving papers, in essence, alleged that he is financially unable to meet the court-ordered support and alimony payments and that plaintiff had fraudulently represented his income in her application for temporary alimony and support. He additionally asserted that his financial inability was not adequately litigated, due to the incompetence of his prior counsel. We have reviewed the record and are of the opinion that defendant merely alleges that '.the issue of his.earning capacity was not fully litigated due to the inadequacy of counsel. . On this state of facts we believe it was error for the fourth Judge to vacate the prior orders of other Judges of the court of co-ordinate jurisdiction This was a clear violation of CPLR 2221. Hopkins, Acting P. J., Latham, Christ, Brennan and Benjamin. JJ., concur.

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In an action for separation, the plaintiff wife appeals from an order of the Supreme Court, Queens County, entered October 12, 1973, which, upon defendant’s motion, (1) vacated three orders of the same court, dated February 20, 1973, June 15, 1973 and August 20, 1973, respectively, (a) the first [584]*584granting plaintiff’s motion for temporary alimony and child support and' a counsel fee, (h) the second adjudging defendant in contempt for disobedience of said first order and (e) the third ordering that defendant be committed to jail for said contempt; and (2) stayed enforcement of said order of August 20, 1973. Order reversed, without costs, and defendant’s motion remitted to Mr. Justice O’Connor pursuant to CPLR 2221. This action was commenced in January, 1973. The order of February 20, 1973 was made by Mr. Justice O’Connor, the order of June 15, 1973 by Mr. Justice Kunzeman and the order of August 20, 1973 by Mr. Justice Fitzpatrick. On August 30, 1973 defendant made the motion which resulted in the order under review before a fourth Judge. His moving papers, in essence, alleged that he is financially unable to meet the court-ordered support and alimony payments and that plaintiff had fraudulently represented his income in her application for temporary alimony and support. He additionally asserted that his financial inability was not adequately litigated, due to the incompetence of his prior counsel. We have reviewed the record and are of the opinion that defendant merely alleges that '.the issue of his.earning capacity was not fully litigated due to the inadequacy of counsel. . On this state of facts we believe it was error for the fourth Judge to vacate the prior orders of other Judges of the court of co-ordinate jurisdiction This was a clear violation of CPLR 2221. Hopkins, Acting P. J., Latham, Christ, Brennan and Benjamin. JJ., concur.

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Bluebook (online)

44 A.D.2d 583, 353 N.Y.S.2d 242, 1974 N.Y. App. Div. LEXIS 5459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaminsky-v-kaminsky-nyappdiv-1974.