 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kaye v. Kaye1/5/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Based on the foregoing the decision and order of the court is as follows:
On June 9, 2003 the disputed financial issues in this divorce action and the inquest on the divorce grounds were referred for hearing before and report by a Special Referee. The specifically referred issues included: an inquest on the divorce, equitable distribution; maintenance; child support; and attorney's and other professional's fees. Thirteen days of testimony were heard and post trial submissions made. On October 15, 2004 Special Referee Howard Leventhal rendered a 67 page report containing his findings and recommendations. Defendant had moved to confirm in part and reject in part. Plaintiff has cross-moved to confirm in part and reject in part.
DISCUSSION
It is the function of a referee to determine the issues referred, as well as to resolve conflicting testimony and matters of credibility. Pursuant to CPLR § 4403 the court may confirm or reject in whole or in part any report made by the Special Referee. The court may also make new findings with or without the taking of additional testimony, provided it has the benefit of the transcripts and trial exhibits (which it has in this case). As a general rule, however, the court will not disturb the Referee's findings, and the report should be confirmed, if his or her findings are supported by the record and if s/he has clearly defined the issues, and fairly resolved matters of credibility. Kaplan v. Einy, 209 AD2d 248 (1st Dept. 1994); Freedman v. Freedman, 211 AD2d 580 (1st Dept. 1995); The Board of Managers of the Boro Park Village-Phase I v. Boro Park, 284 AD2d 237 (1st Dept. 2001). The Referee's recommendations are entitled to great weight since s/he was the trier of fact and had the opportunity to see and hear the witnesses, and observe them on the stand. Frater v. Lavine, 229 AD2d 564 (2d Dept. 1996).
I. Inquest on the Divorce
Plaintiff seeks to confirm that part of the Special Referee's report recommending that she be granted a divorce based upon defendant's cruel and inhuman treatment of her. DRL §170 . Defendant does not oppose the granting of a divorce. Thus the court confirms that part of the report which recommends that plaintiff obtain a divorce in her favor.
II. Equitable Distribution
A. Marital Residence
The marital residence is a townhouse located at 6 East 10th Street in Manhattan. It is the flash-point for the biggest financial disputes between the parties. The parties lived there with their children during their marriage. In addition, there are also other apartments in the townhouse, that produce rental income.
Plaintiff contends that the Special Referee erred in finding that the former marital residence was marital property as opposed to her separate property. She is, nonetheless, willing to accept and seeks confirmation of the Special Referee's recommendation that defendant receive $1,899,200 as and for his equitable interest. She believes that the Referee's recommendation is a reasonable compromise of the parties' conflicting legal claims.
Defendant claims that the Special Referee was correct in finding that the residence was marital property and that the down payment had been made with personal funds and gifts given by others to both parties. He claims that the Special Referee then made an error of law by permitting plaintiff to recoup the entire purchase price of the marital residence before equitably distributing the apprecia
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 New York Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|