Opinion
July 6, 1979
Appeal from the Erie Supreme Court.
Present — Simons, J.P., Hancock, Jr., Callahan, Doerr and Moule, JJ.
Order unanimously reversed, without costs, and matter remitted to Erie Supreme Court for further proceedings in accordance with the following memorandum: On this appeal defendant contends that sections 236 Dom. Rel. and 237 Dom. Rel. of the Domestic Relations Law should be declared unconstitutional, and that the order of February 22, 1979 providing for payment of alimony and counsel fees should be vacated. However, before considering the question presented by defendant, we have two preliminary questions to determine. The first is whether defendant's application was timely and the second is whether the application to vacate or reargue the February 22, 1979 order was properly passed on by a Judge other than one who granted it. Defendant's application, although denominated as a motion for an order "vacating, annulling, and/or resettling and/or rearguing" the order directing payment of temporary alimony and counsel fees, was a motion for reargument since no new or additional fact was presented (Roberts v Connelly, 35 A.D.2d 813; Soloman v. Westchester Funeral Home, 265 App. Div. 867). An application such as defendant's cannot be made after the time for appeal has expired (Matter of Huie [Furman], 20 N.Y.2d 568; Deeves v. Fabric Fire Hose Co., 19 A.D.2d 735, affd 14 N.Y.2d 633). However, since the order on which defendant sought reargument was dated February 22, 1979, and the order to show cause was served March 24, 1979, defendant's application was timely (CPLR 2211). Defendant's application, however, should have been heard by Justice Norman J. Wolf, whose order was challenged, and, upon being presented to another Judge, should have been transferred by that Judge to him under CPLR 2221 (see Riggle v. Buffalo Gen. Hosp., 52 A.D.2d 751; Graham v. Board of Supervisors of Erie County, 25 A.D.2d 250, 252, app dsmd 17 N.Y.2d 866; George W. Collins, Inc. v. Olsker-McLain Ind., 22 A.D.2d 485, 488-489).