Sanders v. Copley

| N.Y. App. Div. | Jan 13, 1994

—Order, Supreme Court, New York County (Lewis R. Friedman, J.), entered on or about April 27, 1993, which denied plaintiff’s motion for an accelerated judgment or, in the alternative, for judgment for arrears on a distributive award previously ordered pursuant to an order and judgment entered April 30, 1992, and for an order compelling defendant to deliver two trial exhibits, and partially granted defendant’s cross motion for contempt, an accounting and surrender of documents, unanimously affirmed, without costs.

The court’s denial of the motion for an accelerated or arrears judgment was both within its authority and a proper exercise of its discretion. The offset of plaintiff’s use and occupancy arrears against the monies owed based upon the April 30, 1992 judgment was not a reduction or cancellation in violation of Domestic Relations Law § 244 (see, Yecies v Yecies, 108 AD2d 813, 814). The amount of use and occupancy was properly calculated based upon value determined by order entered October 2, 1992 and upheld by this Court (194 AD2d 85), and the time plaintiff remained in the marital residence in violation of the prior order and judgment (see, Coco v Coco, 107 AD2d 21, appeal dismissed 65 NY2d 637).

The court also properly found counsel in contempt (Judiciary Law § 756) based upon undisputed evidence (see, Quantum Heating Servs. v Austern, 100 AD2d 843, 844). Counsel received the notice of cross motion, containing the requisite Judiciary Law warning, and was present at argument of the motions, and thus had adequate notice (see, Lu v Betancourt, 116 AD2d 492). Concur — Carro, J. P., Rosenberger, Ellerin and Kupferman, JJ.