Polizzi v. Wahl-Polizzi

237 A.D.2d 985, 656 N.Y.S.2d 989, 1997 N.Y. App. Div. LEXIS 3634

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1997
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Plaintiff submitted no papers in opposition to defendant’s motion for an order directing plaintiff to pay the actual costs of refinancing the mortgage on the marital residence and counsel fees incurred in connection with the subject application and a prior application for fees upon which Supreme Court had reserved decision. Because the record establishes that plaintiff did not request a hearing or oppose submission of those issues on papers, plaintiff waived his right to a hearing on those issues (see, Hapeman v Hapeman, 229 AD2d 807; Gundlach v Gundlach, 223 AD2d 942, 943, lv denied 88 NY2d 802; Matter of Zirkind v Zirkind, 218 AD2d 745, 746). There is sufficient evidence to support the court’s award of costs and fees.

Plaintiff also contends that the court erred in directing him to pay one half of the carrying charges on the marital residence because, at the time of the divorce trial, it directed that defendant be responsible for all costs related to the marital residence from that date forward. Plaintiff, however, failed to include the judgment of divorce in the record on appeal, thereby precluding our review of that issue (see, Solomon v Solomon, 206 AD2d 971, 972; Jones v Brilar Enters., 184 AD2d 1077). (Appeal from Order of Supreme Court, Monroe County, Bergin, J.—Counsel Fees.) Present—Denman, P. J., Green, Balio, Boehm and Fallon, JJ.