Summary
holding that a hearing is only required where evidentiary facts are presented sufficient to create a triable issue of fact
Summary of this case from PA Sulayman MM Jeng v. Barrow-JengOpinion
May 9, 1991
Appeal from the Supreme Court, New York County (Myriam J. Altman, J.).
The parties are Orthodox Jews. When defendant failed to abide by the terms of a Get, plaintiff commenced this action for a divorce. A stipulation was reached settling the action, which was incorporated but not merged into a judgment of divorce. The stipulation also provided that the court retain jurisdiction to enforce provisions of the agreements.
Plaintiff thereafter moved by order to show cause pursuant to Domestic Relations Law § 244, for arrears in child support and reimbursement for certain medical and educational expenses. Defendant cross-moved to dismiss, alleging lack of personal and subject matter jurisdiction. The court granted plaintiff's application, and denied the cross-motion. We now affirm.
Enforcement proceedings pursuant to Domestic Relations Law § 244 do not constitute a new action, but are treated as the continuation of the underlying divorce proceeding (Haskell v Haskell, 6 N.Y.2d 79). Thus, service may be made upon the law firm which represented the defendant in the prior proceeding (Puorto v Puorto, 120 A.D.2d 845). We note, in this regard, that continued post-judgment representation is evidenced by numerous letters and telephone calls between defendant's and plaintiff's counsel, almost up to the time of the commencement of this proceeding. As the judgment stated that the court retained jurisdiction of the matter for enforcing provisions of the stipulation and award, the court also had subject matter jurisdiction.
Nor was defendant entitled to a hearing. Domestic Relations Law § 244 provides for an expedited procedure to resolve support issues, and a hearing is only required in certain limited instances (see, Rogers v Rogers, 151 A.D.2d 738). Defendant failed to come forward with evidentiary facts sufficient to raise any triable issue of fact (Gelb v Bucknell Press, 69 A.D.2d 829).
Concur — Murphy, P.J., Sullivan, Asch, Kassal and Rubin, JJ.