Silver v. Silver

198 A.D.2d 490, 604 N.Y.S.2d 182

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1993
• Status: Published

Opinion

—In an action for a divorce and ancillary relief, the defendant husband appeals from stated portions of an order of the Supreme Court, Westchester County (Nastasi, J.), entered April 3, 1991, which, inter alia, denied his motion, to stay prosecution of an allegedly related action pending in Supreme Court, New York County, entitled Silver Assocs. v Silver.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellant husband unequivocally argued before the Supreme Court that the related action pending in Supreme Court, New York County, involving the parties’ corporate marital property, should be transferred from New York County to Westchester County, and its prosecution should be enjoined. The basis for the husband’s motion was that the New York County action was duplicative of the matrimonial action and thus would constitute a waste of marital assets. On appeal, however, the husband contends that the Supreme Court, Westchester County, improvidently exercised its discretion by failing to direct a joint trial of the two actions in Westchester County (see, CPLR 602 [a]). Since the husband did not raise this argument before the Supreme Court, but rather requested arguably inconsistent relief, it is not properly raised on this appeal (see, Kohilakis v Town of Smithtown, 167 AD2d 513). Further, we agree with the Supreme Court that prosecution of the New York County action should not be enjoined, since it is not duplicative of the matrimonial action and the outcome thereof could result in an increase in the value of the marital estate subject to equitable distribution.

We have reviewed the husband’s remaining contentions and find them to be without merit. Bracken, J. P., Lawrence, O’Brien and Pizzuto, JJ., concur.