Opinion
Submitted June 14, 2001.
August 13, 2001.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Austin, J.), dated April 19, 2000, as denied his motion pursuant to CPLR 5015 to vacate the judgment of divorce entered March 28, 1998, and granted the plaintiff's cross motion to impose a sanction against him to the extent of directing him to pay a sanction in the sum of $2,500 to her.
Rieger Walsh McGinity, LLP, Northport, N.Y. (Leo F. McGinity, Jr., of counsel), for appellant.
Feder, Kaszovitz, Isaacson, Weber, Skala Bass, LLP, New York, N Y (Marcel Weber and Bruce Robins of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, NANCY E. SMITH, THOMAS A. ADAMS, JJ.
ORDERED that the order is modified by deleting the provision thereof directing the defendant to pay a sanction in the sum of $2,500 to the plaintiff and substituting therefor a provision directing the defendant to deposit the sum of $2,500 with the Clerk of the Supreme Court, Nassau County, for transmittal to the Commissioner of Taxation and Finance; as so modified, the order is affirmed, with costs to the plaintiff.
The parties were divorced by judgment entered March 28, 1998. By decision and order dated April 26, 1999, this court affirmed so much of the judgment of divorce as awarded the plaintiff title to all of the assets listed on both of their statements of net worth, if the defendant did not deliver a religious divorce known as a Get to the plaintiff within a specified period of time (see, Pinto v. Pinto, 260 A.D.2d 622).
The defendant's motion to vacate the judgment of divorce on the ground that the plaintiff did not file and serve an affidavit pursuant to Domestic Relations Law § 253(3) was properly denied. Contrary to the defendant's contention, he failed to establish that the plaintiff's omission in filing such an affidavit amounted to fraud, misrepresentation, or misconduct sufficient to entitle him to vacatur of the judgment of divorce (see, CPLR 5015(a)(3); Golding v. Golding, 176 A.D.2d 20; Perl v. Perl, 126 A.D.2d 91; see also, Schwartz v. Schwartz, 235 A.D.2d 468).
The Supreme Court providently exercised its discretion in concluding that the defendant's conduct was frivolous within the meaning of 22 NYCRR 130-1.1 and in granting the plaintiff's cross motion to impose a sanction upon him (see, Marlin Entertainment Group v. Mansoor, A.D.2d [2d Dept., Apr. 16, 2001]; Matter of Minister, Elders Deacons of Refm. Prot. Dutch Church of City of N Y v. 198 Broadway, 76 N.Y.2d 411). The sum of $2,500 was appropriate (see, Matter of Mancini v. Mancini, 245 A.D.2d 518). However, the Supreme Court erred in directing that the sanction be paid directly to the plaintiff rather than the Clerk of the Supreme Court, Nassau County, for transmittal to the Commissioner of Taxation and Finance (see, 22 NYCRR 130-1.3; Matter of Esposito v. Bourcet, 275 A.D.2d 744).
O'BRIEN, J.P., KRAUSMAN, SMITH and ADAMS, JJ., concur.