Sloboda v. Sloboda, 24 A.D.3d 533 (N.Y. App. Div. 2005). · Go Syfert
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Sloboda v. Sloboda, 24 A.D.3d 533 (N.Y. App. Div. 2005). Cases Citing This Book View Copy Cite
12 citation events (12 in the last 25 years) across 3 distinct courts.
Strongest positive: In re Rivera (nyappdiv, 2015-07-22)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (rule) In re Rivera
N.Y. App. Div. · 2015 · confidence medium
Furthermore, since all issues in the divorce action had been resolved at the time of the decedent’s death, the Supreme Court had adjudged that the decedent was entitled to a divorce, and nothing remained to be done except the ministerial entry of a judgment of divorce, the decedent’s death did not abate the divorce action (see Cornell v Cornell, 7 NY2d 164, 169-170 [1959]; Cristando v Lozada, 118 AD3d 846, 847 [2014]; Sloboda v Sloboda, 24 AD3d 533, 534-535 [2005]; Lewis v Green, 295 AD2d 250, 251 [2002]; Obadiah v Shaw, 266 AD2d 521, 522 [1999]).
discussed Cited as authority (rule) In re Rivera
N.Y. App. Div. · 2015 · confidence medium
Furthermore, since all issues in the divorce action had been resolved at the time of the decedent’s death, the Supreme Court had adjudged that the decedent was entitled to a divorce, and nothing remained to be done except the ministerial entry of a judgment of divorce, the decedent’s death did not abate the divorce action (see Cornell v Cornell, 7 NY2d 164, 169-170 [1959]; Cristando v Lozada, 118 AD3d 846, 847 [2014]; Sloboda v Sloboda, 24 AD3d 533, 534-535 [2005]; Lewis v Green, 295 AD2d 250, 251 [2002]; Obadiah v Shaw, 266 AD2d 521, 522 [1999]).
discussed Cited as authority (rule) Kuznetsov v. Kuznetsova
N.Y. App. Div. · 2015 · confidence medium
Petracca v Petracca, 101 AD3d 695 [2012]; Kabir v Kabir, 85 AD3d 1127 [2011]; Arato v Arato, 15 AD3d 511 [2005]; cf. Thelander v Thelander, 42 AD3d 495, 496 [2007]; Sloboda v Sloboda, 24 AD3d 533, 534 [2005]; Luisi v Luisi, 6 AD3d 398, 401 [2004]; Spataro v Spataro, 268 AD2d 467, 468 [2000]; Dombrowski v Dombrowski, 239 AD2d 460, 460 [1997]).
discussed Cited as authority (rule) Barany v. Barany
N.Y. App. Div. · 2010 · confidence medium
Here, the defendant neither interposed a cross motion, nor commenced a separate plenary action, seeking to vacate or set aside the purportedly unenforceable child support provisions (see Sloboda v Sloboda, 24 AD3d 533, 534 [2005]; Jefferson v Jefferson, 21 AD3d 879, 881 [2005]).
discussed Cited as authority (rule) Iodice v. City of White Plains
N.Y. App. Div. · 2009 · confidence medium
An order directing a judicial hearing on a motion to adjudicate a party in contempt does not decide the motion, nor does it affect a substantial right (see CPLR 5701 [a] [2] [v]) and is, therefore, not appealable as a matter of right (see Sloboda v Sloboda, 24 AD3d 533, 534 [2005]; Liebling v Yankwitt, 109 AD2d 780 [1985]).
discussed Cited as authority (rule) Thelander v. Thelander
N.Y. App. Div. · 2007 · confidence medium
A motion is not the proper vehicle for chgdlenging a separation agreement merged but not incorporated into a divorce judgment; rather, the plaintiff should have commenced a separate plenary action seeking vacatur or reformation of the separation agreement (see Christian v Christian, 42 NY2d 63, 72 [1977]; Reiter v Reiter, 39 AD3d 616 [2007]; Sloboda v Sloboda, 24 AD3d 533, 534 [2005]; Gartley v Gartley, 15 AD3d 995, 996 [2005]; Luisi v Luisi, 6 AD3d 398, 401 [2004]).
discussed Cited "see, e.g." Darling v. Darling
N.Y. Sup. Ct. · 2008 · signal: see also · confidence medium
For example, where one of the spouses dies after decision or stipulation, but before entry, “[i]f at the time of the decedent’s death nothing remains to be done in the divorce action except enter a judgment, the parties’ substantive rights should be determined as if the judgment of divorce had been entered immediately as of the time nothing remained to be done except enter a judgment.” (See Lewis v Green, 295 AD2d 250, 251 [1st Dept 2002]; see also Zuckerman v Zuckerman, 34 AD3d 403, 403 [1st Dept 2006].) Where “all outstanding issues ha[ye] been resolved,” the entry of the divorce…
Retrieving the full opinion text from the archive…
Mary C. Sloboda
v.
Joseph A. Sloboda, Sr.
Appellate Division of the Supreme Court of the State of New York.
Dec 12, 2005.
24 A.D.3d 533
Cited by 11 opinions  |  Published

[*534] In a matrimonial action in which the parties were divorced by judgment entered August 6, 2003, the plaintiff appeals from stated portions of an order of the Supreme Court, Nassau County (Ross, J.), dated December 23, 2003, which, inter alia, denied her motion to vacate a stipulation of settlement dated September 23, 2002, and the judgment of divorce, and directed a conference and, thereafter, if necessary, a hearing on that branch of the defendant’s cross motion which was for an award of an attorney’s fee.

Ordered that the appeal from so much of the order as directed a conference and, thereafter, if necessary, a hearing on that branch of the cross motion which was for an award of an attorney’s fee is dismissed; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the defendant.

An order directing a hearing to aid in the determination of a motion does not dispose of the motion and does not affect a substantial right, and therefore is not appealable as of right (see CPLR 5701 [a] [2] [v]; see Berliner v Berliner, 294 AD2d 524 [2002]; Davidson-Sakuma v Sakuma, 280 AD2d 577 [2001]; Palma v Palma, 101 AD2d 812 [1984]). Since leave to appeal from that branch of the order has not been granted, the appeal from so much of the order as directed a conference and thereafter, if necessary, a hearing on that branch of the cross motion which was for an award of an attorney’s fee, is dismissed.

The parties to this matrimonial action executed a stipulation of settlement on September 23, 2002, following more than one year of negotiations. Both were represented by counsel. The stipulation, inter alia, obligated the parties to execute and deliver any further instruments necessary to effectuate its provisions. The court directed the parties to submit proposed judgments of divorce. The plaintiff, as the party who prevailed on her complaint for a divorce, was obligated under 22 NYCRR 202.48 to submit a proposed judgment for the court’s signature (see Funk v Barry, 89 NY2d 364, 367 [1996]). Upon the plaintiffs failure to comply with this directive, the defendant submitted a proposed judgment which, upon the plaintiff’s waiver of the notice period, the court signed.

Since all outstanding issues had been resolved, the issuance of the judgment of divorce brought a proper repose to the proceedings and was a mere ministerial act (see Russo v Russo, [*535] 289 AD2d 467, 468 [2001]; Obadiah v Shaw, 266 AD2d 521, 522 [1999]; Van Pelt v Van Pelt, 172 AD2d 659 [1991]). It was entered pursuant to the terms of the stipulation of settlement and, thus, on consent of the parties.

Furthermore, as the Supreme Court correctly observed, the plaintiffs application to set aside the stipulation of settlement was procedurally barred. A plenary action is required to set aside a stipulation, as here, incorporated but not merged into the judgment of divorce (see Gottlieb v Gottlieb, 294 AD2d 537 [2002]; Spataro v Spataro, 268 AD2d 467 [2000]; Dombrowski v Dombrowski, 239 AD2d 460 [1997]). In any event, as the Supreme Court found, the stipulation of settlement was not unconscionable or procured by the defendant’s alleged misrepresentation and would not, therefore, be set aside (see Chambers v McIntyre, 5 AD3d 344, 345 [2004]; Feiertag v Feiertag, 2 AD3d 574, 575 [2003]; Brennan v Brennan, 305 AD2d 524 [2003]; Strangolagalli v Strangolagalli, 295 AD2d 338 [2002]; cf. Cruciata v Cruciata, 10 AD3d 349 [2004]; Santini v Robinson, 306 AD2d 266 [2003]). Prudenti, P.J., Florio, Crane and Lifson, JJ., concur.