Nazario v. St. Barnabas Hospital

Nov 21, 2006
Versions:34 A.D.3d 345
825 N.Y.S.2d 197

Order, Supreme Court, Bronx County (John Ostermann, Special Referee), entered March 14, 2006, which granted defendant husband an equitable share of the marital estate, including plaintiff wife’s employee pension/annuity plans and the marital residence, unanimously modified, on the law, the matter remanded to the Special Referee for further proceedings in accordance herewith, and otherwise affirmed, without costs.

Defendant’s motion for reargument was properly granted, even though untimely (Liss v Trans Auto Sys., 68 NY2d 15, 20 [1986]), because the court had overlooked facts offered on his prior motion to vacate the default judgment of divorce, specifically, his lack of notice of the equitable distribution hearing. This was not a frivolous motion warranting sanctions. Nonetheless, the case should be remanded because the Referee failed to evaluate the marital property sufficiently (Capasso v Capasso, 119 AD2d 268 [1986]), or to set a valuation date on the property (Domestic Relations Law § 236 [B] [4] [b]). Concur—Tom, J.P., Andrias, Saxe, Gonzalez and Sweeny, JJ.