enumerated statutory factors in New York

2022Considering plaintiff's " 'reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors' " ( Wilkins , 129 AD3d at 1618 , quoting Hartog v Hartog , 85 NY2d 36, 52 [1995]), we conclude that the court's maintenance award did not constitute an abuse of discretion ( see Murphy , 175 AD3d at 1541-1542; Repetti v Repetti , 147 AD3d 1094, 1096-1097 [2d Dept 2017]; cf. Zufall v Zufall , 109 AD3d 1135 , 1136-1137 [4th Dept 2013], lv denied 22 NY3d 859 [2014]).

2018The 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" ( Wilkins v Wilkins , 129 AD3d 1617, 1618 [4th Dept 2015], quoting Hartog v Hartog , 85 NY2d 36, 52 [1995]; see Domestic Relations Law § 236 [B] [former (6) (a)]), including the payor spouse's present and future earning capacity ( see Morrissey v Morrissey , 259 AD2d 472, 473 [2d Dept 1999]), and the equitable distribution of marital property ( see Zufall v Zufall , 109 AD3d 1135 , 1136 [4th Dept 2013], lv denied 22 NY

2015“The record establishes that the court appropriately considered [plaintiffs] ‘reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors’ set forth in Domestic Relations Law § 236 (B) (6) (a)” (Frost v Frost, 49 AD3d 1150, 1151 [2008], quoting Hartog v Hartog, 85 NY2d 36, 52 [1995]).

2015“The record establishes that the court appropriately considered [plaintiffs] ‘reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors’ set forth in Domestic Relations Law § 236 (B) (6) (a)” (Frost v Frost, 49 AD3d 1150, 1151 [2008], quoting Hartog v Hartog, 85 NY2d 36, 52 [1995]).

2015While we conclude that three of the factors favor claimant, i.e., notice, opportunity to investigate and lack of substantial prejudice to defendant, we decline to disturb the court’s exercise of discretion, inasmuch as the record supports the court’s determination that “the excuse offered for the delay is inadequate and the proposed claim is of questionable merit” (Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]; see Matter of Magee v State of New York, 54 AD3d 1117, 1118 [2008]).

2015While we conclude that three of the factors favor claimant, i.e., notice, opportunity to investigate and lack of substantial prejudice to defendant, we decline to disturb the court’s exercise of discretion, inasmuch as the record supports the court’s determination that “the excuse offered for the delay is inadequate and the proposed claim is of questionable merit” (Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]; see Matter of Magee v State of New York, 54 AD3d 1117, 1118 [2008]).

2022Considering plaintiff's " 'reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors' " ( Wilkins , 129 AD3d at 1618 , quoting Hartog v Hartog , 85 NY2d 36, 52 [1995]), we conclude that the court's maintenance award did not constitute an abuse of discretion ( see Murphy , 175 AD3d at 1541-1542; Repetti v Repetti , 147 AD3d 1094, 1096-1097 [2d Dept 2017]; cf. Zufall v Zufall , 109 AD3d 1135 , 1136-1137 [4th Dept 2013], lv denied 22 NY3d 859 [2014]).

2019Here, 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 AD3d 1518 , 1519 [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 Zufal

2022Considering plaintiff's " 'reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors' " ( Wilkins , 129 AD3d at 1618 , quoting Hartog v Hartog , 85 NY2d 36, 52 [1995]), we conclude that the court's maintenance award did not constitute an abuse of discretion ( see Murphy , 175 AD3d at 1541-1542; Repetti v Repetti , 147 AD3d 1094, 1096-1097 [2d Dept 2017]; cf. Zufall v Zufall , 109 AD3d 1135 , 1136-1137 [4th Dept 2013], lv denied 22 NY3d 859 [2014]).

2018The 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" ( Wilkins v Wilkins , 129 AD3d 1617, 1618 [4th Dept 2015], quoting Hartog v Hartog , 85 NY2d 36, 52 [1995]; see Domestic Relations Law § 236 [B] [former (6) (a)]), including the payor spouse's present and future earning capacity ( see Morrissey v Morrissey , 259 AD2d 472, 473 [2d Dept 1999]), and the equitable distribution of marital property ( see Zufall v Zufall , 109 AD3d 1135 , 1136 [4th Dept 2013], lv denied 22 NY

2015Finally, contrary to defendant’s contention, we conclude that the award of counsel fees to plaintiff is reasonable and does not constitute an abuse or improvident exercise of the court’s discretion (see Gelia v Gelia, 114 AD3d 1263, 1264 [2014]).

2015Finally, contrary to defendant’s contention, we conclude that the award of counsel fees to plaintiff is reasonable and does not constitute an abuse or improvident exercise of the court’s discretion (see Gelia v Gelia, 114 AD3d 1263, 1264 [2014]).

2015Contrary to the husband’s contention, the court did not err in refusing to credit his testimony that his income ranged from $25,000 to $33,000 per year where, as here, the husband failed to provide his income tax returns or any valid evidence of his income or earnings, and the evidence establishes that he indicated on a vehicle loan application that he made approximately $60,000 per year (see generally Kent v Kent, 291 AD2d 258, 259 [2002]).

2015Contrary to the husband’s contention, the court did not err in refusing to credit his testimony that his income ranged from $25,000 to $33,000 per year where, as here, the husband failed to provide his income tax returns or any valid evidence of his income or earnings, and the evidence establishes that he indicated on a vehicle loan application that he made approximately $60,000 per year (see generally Kent v Kent, 291 AD2d 258, 259 [2002]).

2015While we conclude that three of the factors favor claimant, i.e., notice, opportunity to investigate and lack of substantial prejudice to defendant, we decline to disturb the court’s exercise of discretion, inasmuch as the record supports the court’s determination that “the excuse offered for the delay is inadequate and the proposed claim is of questionable merit” (Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]; see Matter of Magee v State of New York, 54 AD3d 1117, 1118 [2008]).

2015While we conclude that three of the factors favor claimant, i.e., notice, opportunity to investigate and lack of substantial prejudice to defendant, we decline to disturb the court’s exercise of discretion, inasmuch as the record supports the court’s determination that “the excuse offered for the delay is inadequate and the proposed claim is of questionable merit” (Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]; see Matter of Magee v State of New York, 54 AD3d 1117, 1118 [2008]).

2014On this record, it cannot be said that the court abused its discretion in denying defendant’s request for maintenance (see Smith v Winter, 64 AD3d 1218, 1220 [2009], lv denied 13 NY3d 709 [2009]).

2014On this record, it cannot be said that the court abused its discretion in denying defendant’s request for maintenance (see Smith v Winter, 64 AD3d 1218, 1220 [2009], lv denied 13 NY3d 709 [2009]).

2019Here, 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 AD3d 1518 , 1519 [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 Zufal

2018The 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" ( Wilkins v Wilkins , 129 AD3d 1617, 1618 [4th Dept 2015], quoting Hartog v Hartog , 85 NY2d 36, 52 [1995]; see Domestic Relations Law § 236 [B] [former (6) (a)]), including the payor spouse's present and future earning capacity ( see Morrissey v Morrissey , 259 AD2d 472, 473 [2d Dept 1999]), and the equitable distribution of marital property ( see Zufall v Zufall , 109 AD3d 1135 , 1136 [4th Dept 2013], lv denied 22 NY

2013Notably, maintenance is appropriate where, among other things, “ ‘the marriage is of long duration, [and] the recipient spouse has been out of the work force for a number of years [and] has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor’ ” (Williams v Williams, 99 AD3d at 1095 , quoting Ndulo v Ndulo, 66 AD3d 1263, 1265 [2009]; see Murray v Murray, 101 AD3d at 1322).

2013Notably, maintenance is appropriate where, among other things, “ ‘the marriage is of long duration, [and] the recipient spouse has been out of the work force for a number of years [and] has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor’ ” (Williams v Williams, 99 AD3d at 1095 , quoting Ndulo v Ndulo, 66 AD3d 1263, 1265 [2009]; see Murray v Murray, 101 AD3d at 1322).

2013Turning to the husband’s challenge to the wife’s maintenance award, it is well settled that the amount and duration of maintenance is an issue that is generally left to the sound discretion of the trial court so long as the court considers the enumerated statutory factors (see Domestic Relations Law § 236 [B]; Murray v Murray, 101 AD3d at 1322; Williams v Williams, 99 AD3d at 1096 ).

2013Turning to the husband’s challenge to the wife’s maintenance award, it is well settled that the amount and duration of maintenance is an issue that is generally left to the sound discretion of the trial court so long as the court considers the enumerated statutory factors (see Domestic Relations Law § 236 [B]; Murray v Murray, 101 AD3d at 1322; Williams v Williams, 99 AD3d at 1096 ).

2008Further, “the court has great flexibility and discretion to fashion an equitable award” in distributing the marital assets (Lester v Lester, 237 AD2d 872, 874 [1997]), and the court properly exercised that flexibility and discretion in awarding defendant, in addition to maintenance, $50,000 to be paid from marital assets to pursue additional education.

1998The court, however, should have awarded maintenance retroactive to February 13, 1995, the date of the application therefor (see, Do mestic Relations Law § 236 [B] [6] [a]; Lester v Lester, 237 AD2d 872, 873 ).

1999Although plaintiff contends that he should not be required to pay maintenance in the event his severance pay is held to be a marital asset, the trial court, in determining maintenance, appropriately considered the payee spouse’s reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors, and then, in the sound exercise of its discretion, established a fair and equitable maintenance award in the amount of $5,000 per month (see, Hartog v Hartog, 85 NY2d, supra, at 52; Summer v Summer, 85 NY2d 1014, 1016 ).

1999The fact that a payee spouse has the ability to become self-supporting “with respect to some standard of living” (supra, at 52 [emphasis in original]), does not preclude an award of lifetime maintenance nor obviate the court’s responsibility to consider the parties’ predivorce standard of living (supra; see also, Summer v Summer, 85 NY2d 1014, 1016 ).

2022Considering plaintiff's " 'reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors' " ( Wilkins , 129 AD3d at 1618 , quoting Hartog v Hartog , 85 NY2d 36, 52 [1995]), we conclude that the court's maintenance award did not constitute an abuse of discretion ( see Murphy , 175 AD3d at 1541-1542; Repetti v Repetti , 147 AD3d 1094, 1096-1097 [2d Dept 2017]; cf. Zufall v Zufall , 109 AD3d 1135 , 1136-1137 [4th Dept 2013], lv denied 22 NY3d 859 [2014]).

2017Supreme Court “properly considered plaintiffs ‘reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors’ set forth in the statute” (Wilkins v Wilkins, 129 AD3d 1617, 1618 [2015], quoting Hartog v Hartog, 85 NY2d 36, 52 [1995]; see Lazar v Lazar, 124 AD3d 1242, 1243 [2015]), and we decline to substitute our discretion for that of the court.

2015“The amount and duration of a spousal maintenance award is within the sound discretion of Supreme Court, after consideration of the enumerated statutory factors, as well as the marital standard of living” (Roberto v Roberto, 90 AD3d 1373, 1376 [2011] [citations omitted]).

2011Louis, 86 AD3d 706, 709 [2011]), after consideration of the enumerated statutory factors, as well as the marital standard of living (see Domestic Relations Law § 236 [B] [6] [a]; Hartog v Hartog, 85 NY2d 36, 50-51 [1995]; St.

2010Where, as here, petitioner challenges an administrative determination made where a hearing is not required, appellate review is limited to whether the determination lacks a rational basis and is, thus, arbitrary and capricious (see Matter of Arrocha v Board of Educ. of City of N.Y., 93 NY2d 361, 363 [1999]). 3 In rendering a determination to either grant (in whole or in part) or deny petitioner’s application for a CRD, respondent is required to consider and apply the statutorily enumerated factors set forth in Correction Law § 702 (2) (see Matter of Boatman v New York State Dept. of Educ., 72

2010Where, as here, petitioner challenges an administrative determination made where a hearing is not required, appellate review is limited to whether the determination lacks a rational basis and is, thus, arbitrary and capricious (see Matter of Arrocha v Board of Educ. of City of N.Y., 93 NY2d 361, 363 [1999]). 3 In rendering a determination to either grant (in whole or in part) or deny petitioner’s application for a CRD, respondent is required to consider and apply the statutorily enumerated factors set forth in Correction Law § 702 (2) (see Matter of Boatman v New York State Dept. of Educ., 72

2009The Court of Appeals recently clarified that the expiration of a limitations period does not deprive the court of jurisdiction over an absent necessary party but, rather, may provide that party with a defense to the action or proceeding (see Windy Ridge Farm v Assessor of Town of Shandaken, 11 NY3d 725, 726-727 [2008]; see also Matter of Romeo v New York State Dept. of Educ., 41 AD3d 1102, 1104-1105 [2007]).

2009The Court of Appeals recently clarified that the expiration of a limitations period does not deprive the court of jurisdiction over an absent necessary party but, rather, may provide that party with a defense to the action or proceeding (see Windy Ridge Farm v Assessor of Town of Shandaken, 11 NY3d 725, 726-727 [2008]; see also Matter of Romeo v New York State Dept. of Educ., 41 AD3d 1102, 1104-1105 [2007]).