McManus v. McManus

154 A.D.2d 518, 547 N.Y.S.2d 240, 1989 N.Y. App. Div. LEXIS 12769

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 16, 1989
• Status: Published

Opinion

— In a matrimonial action in which the parties were divorced by judgment dated March 7, 1978, the defendant husband appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Rockland County (Bergerman, J.), dated February 19, 1988, as granted the plaintiff wife’s motion to amend the judgment of divorce, and (2) an amended judgment of the same court, dated March 24, 1988.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the amended judgment is reversed, as a matter of discretion, the order is vacated, and the motion is denied; and it is further,

Ordered that the appellant is awarded one bill of costs.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the amended judgment (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the amended judgment (CPLR 5501 [a] [1]).

We find that the Supreme Court improvidently exercised its discretion in permitting modification of the judgment of divorce nearly 10 years after its entry (see, Veraldo v Veraldo, 151 AD2d 661; see also, Rainbow v Swisher, 72 NY2d 106). Brown, J. P., Eiber, Kooper and Rosenblatt, JJ., concur.