Treatment trajectory · 2001 → 2026 · click a year to view as-of
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Top citers, strongest first. 32 distinct citers.
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discussed
Cited as authority (rule)
Szypula v. Szypula
The acquisition of the separate pension credits cannot serve to transform such property into a marital asset ( see Ceravolo v DeSantis, 125 AD3d 113, 116 [3d Dept 2015]; Burgio v Burgio, 278 AD2d 767, 769 [3d Dept 2000]).
discussed
Cited as authority (rule)
Johnston v. Johnston
While the husband was unsure of the precise use of the remaining funds, he testified that they “were used for the family.” Thus, in the absence of any evidence that the husband used the home equity loan to pay off his separate liabilities (see Ceravolo v DeSantis, 125 AD3d 113, 119 [2015]; Lewis v Lewis, 6 AD3d at 839 ), Supreme Court did not abuse its discretion in directing that the home equity loan be paid out of the proceeds from the sale of the marital residence or, to the extent that such proceeds were insufficient, split equally among the parties (compare Burgio v Burgio, 278 AD2d 7…
discussed
Cited as authority (rule)
Lestz v. Lestz
Accordingly, she failed to satisfy her burden of establishing “the baseline value of the business and the extent of its appreciation” (Morrow v Morrow, 19 AD3d at 254 [internal quotation marks omitted]), and the court erred in making an award to the plaintiff on this basis (see Ceravolo v DeSantis, 125 AD3d 113, 117-118 [2015]; Clark v Clark, 117 AD3d at 669 ; Davidman v Davidman, 97 AD3d 627, 628 [2012]; Albanese v Albanese, 69 AD3d 1005, 1006 [2010]; Burgio v Burgio, 278 AD2d 767, 769 [2000]).
discussed
Cited as authority (rule)
Seale v. Seale
Deferring to the court’s credibility determinations, we find that the wife failed to meet her burden of proof of establishing any appreciation of these properties during the marriage (see Albanese v Albanese, 69 AD3d 1005, 1006 [2010]; Burgio v Burgio, 278 AD2d 767, 769 [2000]).
discussed
Cited as authority (rule)
Seale v. Seale
Deferring to the court’s credibility determinations, we find that the wife failed to meet her burden of proof of establishing any appreciation of these properties during the marriage (see Albanese v Albanese, 69 AD3d 1005, 1006 [2010]; Burgio v Burgio, 278 AD2d 767, 769 [2000]).
discussed
Cited as authority (rule)
Macaluso v. Macaluso
Although the wife could have been entitled to equitable distribution of a portion of the residence’s appreciation in value for her contributions of time, money and labor toward improving the property, she did not meet her burden by proving the real property’s increase in value, as she did not submit proof of the property’s value on the date of the marriage to compare it to the value at the time of commencement of this action (see Ceravolo v DeSantis, 125 AD3d at 117-118 ; Burgio v Burgio, 278 AD2d 767, 769 [2000]; see e.g.
discussed
Cited as authority (rule)
Ceravolo v. DeSantis
Accordingly, the Equitable Distribution Law does not purport to address financial transactions between persons prior to their marriage, which “cannot be considered to have been the product of the marital enterprise” (Brennan v Brennan, 103 AD2d 48, 52 [1984]). 1 Therefore, while Supreme Court’s finding that the wife made certain substantial contributions of money and effort toward the acquisition and maintenance of the marital residence is amply supported by the record, the effect of such contributions by the wife — particularly those she made before the marriage — is not to transfor…
discussed
Cited as authority (rule)
Macaluso v. Macaluso
Although the wife could have been entitled to equitable distribution of a portion of the residence’s appreciation in value for her contributions of time, money and labor toward improving the property, she did not meet her burden by proving the real property’s increase in value, as she did not submit proof of the property’s value on the date of the marriage to compare it to the value at the time of commencement of this action (see Ceravolo v DeSantis, 125 AD3d at 117-118 ; Burgio v Burgio, 278 AD2d 767, 769 [2000]; see e.g.
discussed
Cited as authority (rule)
Ceravolo v. DeSantis
Accordingly, the Equitable Distribution Law does not purport to address financial transactions between persons prior to their marriage, which “cannot be considered to have been the product of the marital enterprise” (Brennan v Brennan, 103 AD2d 48, 52 [1984]). 1 Therefore, while Supreme Court’s finding that the wife made certain substantial contributions of money and effort toward the acquisition and maintenance of the marital residence is amply supported by the record, the effect of such contributions by the wife — particularly those she made before the marriage — is not to transfor…
discussed
Cited as authority (rule)
Turco v. Turco
The plaintiff, however, did not sustain her burden of proof (see Morales v Inzerra, 98 AD3d 484, 484 [2012]; Embury v Embury, 49 AD3d at 804 ; Tzanopoulos v Tzanopoulos, 18 AD3d 464, 465 [2005]; Burgio v Burgio, 278 AD2d 767, 770 [2000]).
discussed
Cited as authority (rule)
Turco v. Turco
The plaintiff, however, did not sustain her burden of proof (see Morales v Inzerra, 98 AD3d 484, 484 [2012]; Embury v Embury, 49 AD3d at 804 ; Tzanopoulos v Tzanopoulos, 18 AD3d 464, 465 [2005]; Burgio v Burgio, 278 AD2d 767, 770 [2000]).
discussed
Cited as authority (rule)
Patete v. Rodriguez
Contrary to the defendant’s contention, she failed to sustain her burden of demonstrating the manner in which her contributions, if any, resulted in the increase in the value of this vacant parcel over the course of the marriage (see Formica v Formica, 101 AD3d at 806 ; Embury v Embury, 49 AD3d 802, 804 [2008]; Michelini v Michelini, 47 AD3d 902, 903 [2008]; Burgio v Burgio, 278 AD2d 767, 769 [2000]; Chan v Chan, 267 AD2d 413, 414 [1999]; Elmaleh v Elmaleh, 184 AD2d 544 [1992]).
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Cited as authority (rule)
Patete v. Rodriguez
Contrary to the defendant’s contention, she failed to sustain her burden of demonstrating the manner in which her contributions, if any, resulted in the increase in the value of this vacant parcel over the course of the marriage (see Formica v Formica, 101 AD3d at 806 ; Embury v Embury, 49 AD3d 802, 804 [2008]; Michelini v Michelini, 47 AD3d 902, 903 [2008]; Burgio v Burgio, 278 AD2d 767, 769 [2000]; Chan v Chan, 267 AD2d 413, 414 [1999]; Elmaleh v Elmaleh, 184 AD2d 544 [1992]).
cited
Cited as authority (rule)
Davidman v. Davidman
Consequently, the marital residence is separate property (see Domestic Relations Law § 236 [B] [1] [d] [1]; London v London, 21 AD3d 602, 603 [2005]; Burgio v Burgio, 278 AD2d 767, 768-769 [2000]).
cited
Cited as authority (rule)
Davidman v. Davidman
Consequently, the marital residence is separate property (see Domestic Relations Law § 236 [B] [1] [d] [1]; London v London, 21 AD3d 602, 603 [2005]; Burgio v Burgio, 278 AD2d 767, 768-769 [2000]).
discussed
Cited as authority (rule)
Scher v. Scher
Separate property includes “property acquired before [the] marriage” (Domestic Relations Law § 236 [B] [1] [d] [1]), such as the business interest in Home Companion Services in this case, as well as “the increase in value of [such] separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse” (Domestic Relations Law § 236 [B] [1] [d] [3]). “[I]n order for appreciation in the value of separate property to be deemed marital property subject to equitable distribution, the nontitled spouse must demonstrate the manner …
discussed
Cited as authority (rule)
Saia v. Saia
Thus, Supreme Court did not err in finding that he was not entitled to an equitable distribution award as to these two properties (see Bonanno v Bonanno, 57 AD3d 1260, 1261 [2008]; Burgio v Burgio, 278 AD2d 767, 768-769 [2000]).
discussed
Cited as authority (rule)
Sadaghiani v. Ghayoori
As defendant offered no evidence that he contributed anything to either the original purchase of the properties or any increase in their value, he was not entitled to distribution of any portion of the real property (see London v London, 21 AD3d 602, 603 [2005]; Burgio v Burgio, 278 AD2d 767, 769 [2000]).
discussed
Cited as authority (rule)
Spera v. Spera
Accordingly, the Supreme Court lacked an evidentiary basis upon which to make any award to the plaintiff with respect to these claimed investment funds (see Burtchaell v Burtchaell, 42 AD3d 783, 786 [2007]; Seckler-Roode v Roode, 36 AD3d 889, 890 [2007]; Massimi v Massimi, 35 AD3d 400, 403 [2006]; Burgio v Burgio, 278 AD2d 767, 769 [2000]).
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Cited as authority (rule)
Albanese v. Albanese
“The nontitled spouse bears the burden of proof on this issue” (Van Dyke v Van Dyke, 273 AD2d at 592 [citations omitted]; see Morrow v Morrow, 19 AD3d 253, 254 [2005]; Burgio v Burgio, 278 AD2d 767, 769 [2000]).
discussed
Cited as authority (rule)
Bonanno v. Bonanno
Defendant, as the nontitled spouse claiming such interest, bore the burden of establishing that the increased value was due in part to his efforts as opposed to market forces or other unrelated factors (see Golub v Ganz, 22 AD3d 919, 922-923 [2005]; Lawson v Lawson, 288 AD2d 795, 796 [2001]; Burgio v Burgio, 278 AD2d 767, 769 [2000]).
discussed
Cited as authority (rule)
Johnson v. Chapin
Citing numerous cases, the Court emphatically reaffirmed the settled principle that: “ ‘marital funds should not be used to pay off separate liabilities’ and, whenever that occurs, the inequity may be remedied by permitting the injured spouse to recoup his or her equitable share of the marital funds so used (Micha v Micha, 213 AD2d 956, 957 [1995]; see Carr v Carr, 291 AD2d 672, 676 [2002]; Alessi v Alessi, 289 AD2d 782, 783 [2001]; Burgio v Burgio, 278 AD2d 767, 769 [2000]; Markopoulos v Markopoulos, 274 AD2d 457, 458-459 [2000]; Carney v Carney, 202 AD2d 907, 908 [1994])” ( 6 AD3d at…
cited
Cited as authority (rule)
Mattioli v. Mattioli
Hartog v Hartog, 85 NY2d 36, 46 [1995]; Burgio v Burgio, 278 AD2d 767, 768-769 [2000]).
discussed
Cited as authority (rule)
Massimi v. Massimi
While the defendant would also be entitled to an equitable share of Remy Real Estate Corporation (hereinafter Remy), the record lacks adequate proof as to its value and, hence, no award can be made as to Remy (see Amisson v Amisson, 251 AD2d 274 [1998]; Vainchenker v Vainchenker, 242 AD2d 620, 621 [1997]; Burgio v Burgio, 278 AD2d 767, 769-770 [2000]).
discussed
Cited as authority (rule)
Hildreth-Henry v. Henry
As a result of his failure to comply fully with the plaintiffs discovery demands, the defendant was precluded from testifying at trial and, therefore, could not establish his claim to the appreciated value of the plaintiffs other separate property (see Burgio v Burgio, 278 AD2d 767, 769 [2000]).
discussed
Cited as authority (rule)
London v. London
As the nontitled spouse, plaintiff has the burden of establishing the value, if any, that was added to this property by her direct or indirect contributions during the marriage (see Burgio v Burgio, 278 AD2d 767, 769 [2000]).
discussed
Cited as authority (rule)
Dashnaw v. Dashnaw
We cannot say that the court abused its discretion in concluding that defendant alone should bear the obligation of repayment of the balance of his student loans (see Burgio v Burgio, 278 AD2d 767, 769 [2000]; see also Gelb v Brown, 163 AD2d 189, 194 [1990]).
discussed
Cited as authority (rule)
Lewis v. Lewis
We reaffirm our position that “marital funds should not be used to pay off separate liabilities” and, whenever that occurs, the inequity may be remedied by permitting the injured spouse to recoup his or her equitable share of the marital funds so used (Micha v Micha, 213 AD2d 956, 957 [1995]; see Carr v Carr, 291 AD2d 672, 676 [2002]; Alessi v Alessi, 289 AD2d 782, 783 [2001]; Burgio v Burgio, 278 AD2d 767, 769 [2000]; Markopoulos v Markopoulos, 274 AD2d 457, 458-459 [2000]; Carney v Carney, 202 AD2d 907, 908 [1994]).
discussed
Cited as authority (rule)
Kazel v. Kazel
In any event, where they are not to be distributed until maturity, vested pension benefits need not be valuated by the parties and court in the same manner as other assets; it is sufficient for the court to set the appropriate percentage of the pension benefits to be awarded to the nontitled spouse upon application of the Majauskas formula (see Koeth v Koeth, 309 AD2d 786 [2003]; Pratt v Pratt, 282 AD2d 941, 943 [2001]; Burgio v Burgio, 278 AD2d 767, 769-770 [2000]; Church v Church, 169 AD2d 851, 851-852 [1991]; Dawson v Dawson, 152 AD2d 717, 720 [1989]).
discussed
Cited as authority (rule)
Pascoe v. Pascoe
In addition, we note that the court properly determined that the marital residence was the separate property of defendant and that the interest of plaintiff in the property is limited to her equitable share of any marital funds used to pay the mortgage on the property (see Burgio v Burgio, 278 AD2d 767, 769 [2000]).
discussed
Cited as authority (rule)
Alessi v. Alessi
Under the circumstances, plaintiffs interest in that property is limited to her equitable share of the marital funds applied toward repayment of the mortgage on the residence, which we determine to be 12 payments of $290 or $3,480 (see, Burgio v Burgio, supra, at 769), and Supreme Court lacked authority to distribute the Gilbertsville property as part of its equitable distribution of marital property (see, id.; Zelnik v Zelnik, 169 AD2d 317, 332 ).
discussed
Cited "see"
Embury v. Embury
Moreover, in order for appreciation in the value of separate property to be deemed marital property subject to equitable distribution (see Hartog v Hartog, 85 NY2d 36, 46 [1995]; Price v Price, 69 NY2d 8, 18 [1986]; Nowik v Nowik, 228 AD2d 421 [1996]), the nontitled spouse must “demonstrate the manner in which his contributions resulted in the increase in value and the amount of the increase which was attributable to his efforts” (Elmaleh v Elmaleh, 184 AD2d 544, 545 [1992]; see Burgio v Burgio, 278 AD2d 767, 769 [2000]; Chan v Chan, 267 AD2d 413, 414 [1999]).
Retrieving the full opinion text from the archive…
In the Matter of Jerry Parker
v.
Executive Department, Board of Parole
v.
Executive Department, Board of Parole
Appellate Division of the Supreme Court of the State of New York.
Dec 28, 2000.
Cited by 3 opinions | Published
Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered February 24, 2000 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition as time barred.
Petitioner commenced this CPLR article 78 proceeding challenging a determination of respondent Board of Parole which denied his request for parole release and ordered that he be held for 24 months. Supreme Court granted respondents’ motion to dismiss the petition on Statute of Limitations grounds. Petitioner’s subsequent motion for reconsideration was denied, prompting this appeal.
The record establishes that the Board’s final decision was mailed to petitioner on March 16, 1999. Inasmuch as petitioner filed the executed order to show cause and supporting papers on October 6, 1999, the proceeding was properly dismissed for failure to comply with the four-month Statute of Limitations period (see, CPLR 217 [1]; Matter of Shell v McCray, 261 AD2d 664). Petitioner’s remaining contentions, including his claim that the Statute of Limitations was extended by order of Supreme Court, have been reviewed and are either without merit or not properly before this Court.
Cardona, P. J., Mercure, Crew III, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.