New York Family Law Blog
P v. P
2018 NY Slip Op 02791
Decision
This case deals with a foreign divorce decree. The petitioner brings this appeal from a decision from the Suffolk County Supreme Court. The order from 9/15/15 granted a portion of the respondent’s motion (CPLR 3211 (a)(4) to dismiss the petition. The order from March 2016 denied the petitioner’s motion for leave to renew, as well as her opposition to her cross-motion.
Ordered: order is affirmed, as the portion where the leave to renew is dismissed.
The parties, in this case, were married and lived in Virginia and divorced in 2009. The settlement agreement included terms of distributing the marital assets and payments of attorney fees. In 2013 the respondent tried to reinstate the proceedings in a Virginia court to reinforce portions of the settlement agreement.
The petitioner brought a proceeding in Suffolk County Supreme Court to reinforce the divorce decree. There was litigation continuing in both New York and Virginia concurrently. The Virginia court resolved many of the outstanding issues. The respondent filed a cross motion pursuant to CPLR 3211(a)(4) to dismiss the petition. The Supreme Court granted the motion. The petitioner is appealing that order which denies her leave to renew.
The court said that where two actions are substantially similar, and the relief is similar, the court has broad discretion to determine if the case should be dismissed (CPLR 3211(a)(4); Scottsdale Ins v. Indemnity Ins. Corp 110 AD3d 783). The key here is that both lawsuits arise out of the same scenario (Cherico Assn. V. Midollo 67 AD3d 622). In this case, the respondent showed in Virginia, which was still pending at the time another order appeal from was issued, arose from the same wrongs by the same parties. The court correctly exercised its discretion by granting the respondent’s cross motion (CPLR 3211(a)(4) to dismiss the petition (Scottsdale Ins. Co. 110 AD3d 784, Aurora Loan Svc. V. Reid 132 AD3d 788).
The court said that a motion for leave to renew is up to the discretion of the court (see Mathews v. Weiss 20 AD3d 454). It should be based on facts that weren’t offered in the prior motion that would change the prior determination (Hodzig v M. Cary Inc. 151 AD3d 1034). In this case, the Petitioner didn’t bring any new facts to light that would change the prior decision. The court correctly exercised its discretion in the matter.
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