O'Sullivan v. O'Sullivan

Jul 15, 1994
Versions:206 A.D.2d 960
614 N.Y.S.2d 828
1994 N.Y. App. Div. LEXIS 7666

Memorandum: Plaintiff waived his Statute of Limitations defense by failing to raise it in a timely manner (see, CPLR 3211 [e]; Matter of Augenblick v Town of Cortlandt, 66 NY2d 775, 777, rearg denied 67 NY2d 647; Itzkowitz v Town Bd., 139 AD2d 932). Plaintiff’s argument that the provisions of CPLR 3211 are inapplicable to this proceeding, in reliance on Consentino v Sweeney (143 AD2d 971), is not properly before us because that argument is raised for the first time in plaintiffs reply brief. "The practice of raising a new substantive issue in a reply brief at a time when an adversary can no longer respond to it is improper” (People v Minota, 137 AD2d 837, 838, lv denied 71 NY2d 1030; see, State Farm Fire & Cas. Co. v LiMauro, 103 AD2d 514, 521-522, affd 65 NY2d 369). In any event, plaintiff’s reliance on Consentino is misplaced because the facts of that case are distinguishable from those in this case. Plaintiff failed to raise the Statute of Limitations defense until after Supreme Court rendered its decision on defendant’s postjudgment application pursuant to Domestic Relations Law § 244 and, only then, in response to defendant’s motion to reargue. Thus, plaintiff’s failure to raise the defense in a timely manner deprived defendant of the opportunity to challenge its applicability (see, Szigyarto v Szigyarto, 64 NY2d 275, 280).

Lastly, plaintiff’s argument that a 6% interest rate is applicable to that portion of the arrears accruing prior to June 25, 1981 is advanced for the first time on appeal and thus, the argument is not preserved for review (see, Nemia v Nemia, 124 AD2d 407, Iv denied 69 NY2d 611). In any event, we conclude that the court properly awarded defendant interest on the judgment for arrears pursuant to Domestic Relations Law § 244. (Appeal from Judgment of Supreme Court, Nassau County, Yachnin, J.—Support.) Present—Green, J. P., Balio, Fallon, Callahan and Davis, JJ.