Tumolillo v. Tumolillo

60 A.D.2d 648, 400 N.Y.S.2d 363, 1977 N.Y. App. Div. LEXIS 14648

Opinion

In an action for divorce, defendant appeals from (1) an order of the Supreme Court, Kings County, dated April 15, 1977, which denied her motion to reargue a prior oral decision which fixed the amount of alimony and (2) a judgment of divorce of the same court, dated April 18, 1977. Appeal from the order dismissed. No appeal lies from an order which denies a motion for reargument of a decision. Judgment reversed, on the law, the facts and in the interest of justice, and new trial granted. Defendant is awarded one bill of costs to cover both appeals. When the trial commenced, plaintiffs counsel announced a stipulation on the alimony to be awarded to defendant. Thereafter the trial court repeatedly advised defendant that she could not obtain more alimony than was being offered, although no proof was before the court on that issue. Then, proof on defendant’s abandonment of plaintiff was taken in a pro forma fashion. Since we find that defendant did not voluntarily and intelligently consent to the terms of the stipulation, it is invalid (see Matter of Frutiger, 29 NY2d 143; Bond v Bond, 260 App Div 781; Goldstein v Goldsmith, 243 App Div 268; Foote v Adams, 232 App Div 60, mod 232 App Div 843). Under the circumstances, the entire judgment must be reversed. Since the stipulation was a vital factor at the trial, and as it has been vacated, a new trial on all of the issues is mandated. Hopkins, J. P., Latham, Shapiro and Mollen, JJ., concur.