Smulczeski v. Smulczeski

128 A.D.3d 671, 10 N.Y.S.3d 249

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 2015
• Docket: 2013-11037
• Status: Published

Opinion

In a matrimonial action in which the parties were divorced by judgment dated October 22, 2003, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Behar, J.), dated October 30, 2013, as denied her request for certain affirmative relief.

Ordered that on the Court’s own motion, the appellant’s notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

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

To the extent the Supreme Court concluded that it lacked discretion to consider the plaintiffs request for affirmative relief, which was not presented in a proper cross motion pursuant to CPLR 2215, its conclusion was erroneous. Although “a party seeking relief in connection with another party’s motion is, as a general rule, required to do so by way of a cross motion,” courts “retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215” (Fried v Jacob Holding, Inc., 110 AD3d 56, 64, 65 [2013]).

Nonetheless, the plaintiff would not have been entitled to the requested relief had she made a cross motion under CPLR 2215. The plaintiff sought to alter the equitable distribution provisions of the parties’ judgment of divorce, but the Supreme Court lacked the authority to do so (see Wasserman v Wasserman, 103 AD3d 793 [2013]).

The plaintiffs remaining contentions relate to relief granted by the Supreme Court in a money judgment entered January 29, 2013, and those contentions have been addressed in this Court’s decision on the appeals from that money judgment and a related order dated November 26, 2012 (see Smulczeski v Smulczeski, 128 AD3d 670 [2015] [decided herewith]).

Accordingly, we affirm the order insofar as appealed from. Skelos, J.P., Roman, Hinds-Radix and LaSalle, JJ., concur.

Motion by the respondent to strike the appellant’s brief on an appeal from an order of the Supreme Court, Suffolk County, dated October 30, 2013, on the ground that it improperly raises arguments for the first time on appeal. By decision and order on motion of this Court dated December 1, 2014, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is

Ordered that the motion is denied. Skelos, J.P, Roman, Hinds-Radix and LaSalle, JJ., concur.