Watras v. Watras

43 A.D.2d 520, 349 N.Y.S.2d 79, 1973 N.Y. App. Div. LEXIS 3173

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1973
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on February 8, 1973, which modified a prior order granting temporary alimony, unanimously affirmed, without costs and without disbursements. We must note that the interests of the parties are best served by a prompt trial rather than the numerous inconclusive applications and the delayed prosecution of the present appeal. We reiterate that appeals from awards of temporary alimony are not favored (Cohen v. Cohen, 32 A D 2d 754; Levene v. Levene, 41 A D 2d 530; Gostin v. Gostin, 41 A D 2d 606). It is to he further noted that the modification in question was ordered by a Justice other than the one whose determination was sought to be changed. The general rule is that a Justice should not modify or overrule an order of a fellow Justice of co-ordinate jurisdiction (CPLR 2221; Kamp v. Kamp, 59 N. Y, 212; Mount Sinai Hosp. v. Davis, 8 A D 2d 361; Abozoglou V. Tsalcalatos, 36 A D 2d 516). In the case at bar, there was a true change in circumstances warranting modification. Therefore, while failure to transfer the motion does not warrant reversal, we wish to express our disapproval for failure to comply with the settled practice (cf. Baron v. Baron, 27 A D 2d 723). Concur — McGivern, J. P., Markewich, Lane, Tilzer and Capozzoli, JJ.