Varlaro v. Varlaro

Appellate Division of the Supreme Court of New York

Varlaro v. Varlaro

107 A.D.3d 1596, 966 N.Y.S.2d 730

Appellate Division of the Supreme Court of the State of New York·Decided June 14, 2013·Published·Cited by 1 cases

Opinion

Appeal from an order of the Supreme Court, Herkimer County (Patrick L. Kirk, A.J.), entered December 15, 2011. The order granted the motion of defendant to amend the qualified domestic relations order dated July 11, 2003.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: We affirm for reasons stated in the decision at Supreme Court. We add only that, regardless of the potential merit to plaintiffs contention in opposition to defendant’s motion to amend the qualified domestic relations order dated July 11, 2003 (see e.g. Lemesis v Lemesis, 38 AD3d 1331, 1332 [2007]; Hoke v Hoke, 27 AD3d 1055, 1056 [2006]; see generally Kazel v Kazel, 3 NY3d 331, 332-335 [2004]), the court properly refused to consider the relief requested by plaintiff inasmuch as he did not file or serve a notice of cross motion (see CPLR 2215; see e.g. Free in Christ Pentecostal Church v Julian, 64 AD3d 1153, 1153-1154 [2009]; New York State Div. of Human Rights v Oceanside Cove II Apt. Corp., 39 AD3d 608, 609 [2007]; Khaolaead v Leisure Video, 18 AD3d 820, 821 [2005]; Torre v Torre [appeal No. 1], 142 AD2d 942, 942 [1988]). Present — Scudder, P.J., Centra, Fahey, Carni and Lindley, JJ.

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Appeal from an order of the Supreme Court, Herkimer County (Patrick L. Kirk, A.J.), entered December 15, 2011. The order granted the motion of defendant to amend the qualified domestic relations order dated July 11, 2003.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: We affirm for reasons stated in the decision at Supreme Court. We add only that, regardless of the potential merit to plaintiffs contention in opposition to defendant’s motion to amend the qualified domestic relations order dated July 11, 2003 (see e.g. Lemesis v Lemesis, 38 AD3d 1331, 1332 [2007]; Hoke v Hoke, 27 AD3d 1055, 1056 [2006]; see generally Kazel v Kazel, 3 NY3d 331, 332-335 [2004]), the court properly refused to consider the relief requested by plaintiff inasmuch as he did not file or serve a notice of cross motion (see CPLR 2215; see e.g. Free in Christ Pentecostal Church v Julian, 64 AD3d 1153, 1153-1154 [2009]; New York State Div. of Human Rights v Oceanside Cove II Apt. Corp., 39 AD3d 608, 609 [2007]; Khaolaead v Leisure Video, 18 AD3d 820, 821 [2005]; Torre v Torre [appeal No. 1], 142 AD2d 942, 942 [1988]). Present — Scudder, P.J., Centra, Fahey, Carni and Lindley, JJ.

Varlaro v. Varlaro, 107 A.D.3d 1596, 966 N.Y.S.2d 730 (N.Y. Ct. App. 2013).

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