Franznick v. Town of Huntington

Sep 6, 2005
Versions:21 A.D.3d 875
800 N.Y.S.2d 517

Frances Fisher, Respondent, v Moses Fisher, Appellant. [800 NYS2d 518]—In a matrimonial action in which the parties were divorced by judgment entered March 12, 2002, the defendant appeals (1) from an order of the Supreme Court, Kings County (Yancey, J.), dated January 28, 2004, which granted that branch of the plaintiff‘s motion which was to remove to the Supreme Court, Kings County, a support proceeding pursuant to Family Court Act article 4 pending in the Family Court, Kings County, in effect, to modify a provision of the parties’ stipulation of settlement dated December 4, 2001, which was incorporated but not merged into the judgment of divorce, and (2), as limited by his brief, from so much of an order and judgment (one paper) of the same court dated June 14, 2004, as, in effect, upon converting the petition to a motion for the same relief, denied his motion.

Ordered that the order is affirmed; and it is further,

Ordered that the order and judgment is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

Under the circumstances of this case, the Family Court did not have jurisdiction to entertain the proceeding that the defendant commenced in that court (see Matter of Huddleston v Huddleston, 14 AD3d 511 [2005]). Accordingly, the Supreme Court correctly granted that branch of the plaintiff‘s motion which was to remove the proceeding to the Supreme Court (see CPLR 325 [b]). Moreover, as the defendant failed to establish some basis for vacating or modifying the parties’ stipulation of settlement, the Supreme Court correctly denied the defendant‘s motion. S. Miller, J.P., Krausman, Fisher and Lifson, JJ., concur.