Opinion
665 CA 18–02122
08-22-2019
Kylie F. KESHAV, Plaintiff–Appellant–Respondent, v. Keshav F. SINGH, Defendant–Respondent–Appellant.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (SHARI JO REICH OF COUNSEL), FOR PLAINTIFF–APPELLANT–RESPONDENT. MATTINGLY CAVAGNARO LLP, BUFFALO (CHRISTOPHER S. MATTINGLY OF COUNSEL), FOR DEFENDANT–RESPONDENT–APPELLANT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (SHARI JO REICH OF COUNSEL), FOR PLAINTIFF–APPELLANT–RESPONDENT.
MATTINGLY CAVAGNARO LLP, BUFFALO (CHRISTOPHER S. MATTINGLY OF COUNSEL), FOR DEFENDANT–RESPONDENT–APPELLANT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff wife appeals and defendant husband cross-appeals from a decision that, inter alia, distributed the parties' marital property and awarded plaintiff maintenance. Although "[n]o appeal lies from a mere decision" ( Kuhn v. Kuhn, 129 A.D.2d 967, 967, 514 N.Y.S.2d 284 [4th Dept. 1987] ), we nevertheless exercise our discretion to treat the notices of appeal and cross appeal as valid and deem the appeal and cross appeal as taken from the judgment of divorce (see CPLR 5520[c] ; Ponzi v. Ponzi , 45 A.D.3d 1327, 1327, 845 N.Y.S.2d 605 [4th Dept. 2007] ; Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988, 988, 529 N.Y.S.2d 658 [4th Dept. 1988] ).
Contrary to the parties' contentions on appeal and cross appeal, we conclude that Supreme Court did not abuse its discretion in setting the amount and duration of plaintiff's maintenance award. "Although the authority of this Court in determining issues of maintenance is as broad as that of the trial court" ( D'Amato v. D'Amato, 132 A.D.3d 1424, 1425, 18 N.Y.S.3d 801 [4th Dept. 2015] ), "[a]s a general rule, the amount and duration of maintenance are matters committed to the sound discretion of the trial court" ( Gately v. Gately, 113 A.D.3d 1093, 1093, 978 N.Y.S.2d 550 [4th Dept. 2014], lv dismissed 23 N.Y.3d 1048, 992 N.Y.S.2d 782, 16 N.E.3d 1262 [2014] [internal quotation marks omitted] ). Here, the court properly "considered plaintiff's reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors set forth in the statute" ( Peck v. Peck, 167 A.D.3d 1518, 1519, 90 N.Y.S.3d 770 [4th Dept. 2018] [internal quotation marks omitted]; see Domestic Relations Law § 236[B] [former (6)(a) ] ), including that plaintiff's disability prevented her from working (see § 236[B] [former (6)(a)(8) ] ), that the equitable distribution of marital property alone would be insufficient to support her needs (see § 236[B] [former (6)(a)(15) ]; see generally Zufall v. Zufall, 109 A.D.3d 1135, 1136, 972 N.Y.S.2d 749 [4th Dept. 2013], lv denied 22 N.Y.3d 859, 2014 WL 113961 [2014] ), and that defendant's present and future earning capacity, for the most part, remained consistent (see § 236[B] [former (6)(a)(1) ]; see generally Morrissey v. Morrissey, 259 A.D.2d 472, 473, 686 N.Y.S.2d 71 [2d Dept. 1999] ). We decline to substitute our discretion for that of the court.
Plaintiff further contends on appeal that the court erred in using a 2014 appraisal, rather than a 2016 appraisal, in determining the value of the marital residence. Here, the judgment provided defendant the option of purchasing plaintiff's interest in the marital residence (cf. Lamparillo v. Lamparillo, 130 A.D.3d 580, 582, 12 N.Y.S.3d 296 [2d Dept. 2015] ), and the 2014 appraisal was used only for the limited purpose of calculating the amount defendant would be required to pay if he exercised that option (buyout amount). Although defendant provided the requisite notice of his intent to exercise the option, he failed to comply with the requirement in the judgment that he pay plaintiff the buyout amount within 90 days. Thus, pursuant to the judgment, the marital residence was required to be immediately listed for sale. We therefore conclude that plaintiff's contention regarding the use of the 2014 appraisal is moot.
We have examined the remaining contentions raised on the appeal and the cross appeal and conclude that they are without merit.