Joanne Capace Turco, appellant, v. James Turco, respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Joanne Capace Turco, appellant, v. James Turco, respondent.

2012–08721 (Index No. 200563/07)

Decided: May 7, 2014

MARK C. DILLON, J.P. CHERYL E. CHAMBERS LEONARD B. AUSTIN COLLEEN D. DUFFY, JJ. Sklar & Prusinowski, Hempstead, N.Y. (Cindy A. Prusinowski of counsel), for appellant. Gassman Baiamonte Betts, P.C. Garden City, N.Y. (Stephen Gassman of counsel), for respondent.

Argued—March 11, 2014

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered March 30, 2011, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Diamond, J.), dated June 21, 2012, as granted that branch of the defendant's motion which was to clarify the judgment of divorce by directing that the plaintiff is responsible for the mortgage on the marital residence from the date of the judgment until the end of exclusive occupancy and denied her cross motion for an award of an attorney's fee.

ORDERED that the appeal from so much of the order as granted that branch of the defendant's motion which was to clarify the judgment of divorce by directing that the plaintiff is responsible for the mortgage on the marital residence is dismissed as academic in light of our determination on the companion appeal (see Turco v. Turco, _ AD3d _ [Appellate Division Docket No. 2011–03493;  decided herewith] );  and it is further,

ORDERED that the order is affirmed insofar as reviewed, with costs.

The Supreme Court properly denied the plaintiff's cross motion for an award of an attorney's fee for defending against the defendant's motion, which was not frivolous (see Sluyk v. Sluyk, 99 AD3d 887, 888;  22 NYCRR 130–1.1).

DILLON, J.P., CHAMBERS, AUSTIN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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