Rubin v. Rubin

60 A.D.2d 819, 401 N.Y.S.2d 216, 1978 N.Y. App. Div. LEXIS 9805

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1978
• Status: Published

Opinion

Order, Supreme Court, New York County, entered October 21, 1977, denying renewal of motion (denominated reargument) is unanimously reversed, on the law and the facts, and in the exercise of discretion, without costs and without disbursements, the motion for renewal is granted and on such renewal, defendant’s motion to require plaintiff to give security for alimony due and to become due is granted to the extent of directing plaintiff to give such security in the sum of $25,000. Defendant’s appeal from so much of the order of the Supreme Court, New York County, entered November 18, 1977, as denied security for alimony payments, is unanimously dismissed as academic, that portion of the order being superseded by the nominally earlier order of October 21, 1977. Plaintiffs motion, denominated motion to reargue, and which resulted in the order of October 21, 1977, was a motion to renew as it added new facts. Specifically the supporting papers on the motion to renew allege that plaintiff had as of October 7, 1977, failed to pay $35,894 out of $41,594 alimony due for the past 13 months and had failed to pay any sum whatsoever in regard to the $25,932 owed for the past eight months. These facts, together with the entry of judgment for arrears of $26,369, in our opinion called for requiring plaintiff to post security. The earlier motion before Judge Shorter for security (as well as for a judgment for arrears) resulted in a decision denying the security but granting the judgment for arrears; that decision was dated September 29, 1977; but the order on that decision was not made until November 18, 1977, after the denial of "reargument” by the order of October 21, 1977. Concur—Murphy, P. J., Birns, Silverman and Markewich, JJ.