LEVINE v. LEVINE (2007)

In a matrimonial action in which the parties were divorced by an amended judgment dated April 25, 2005, the plaintiff appeals, as limited by her brief, from (1) stated portions of an order of the Supreme Court, Westchester County (Donovan, J.), dated June 20, 2005, which, after a hearing, inter alia, granted that branch of the defendant's cross motion which was to enforce certain provisions of the divorce judgment relating to distribution of personal property, (2) so much of an order of the same court entered July 19, 2005, as granted that branch of the defendant's cross motion which was for an award of an attorney's fee, and (3) so much of an order and judgment (one paper) of the same court dated November 15, 2005, as, upon the order entered July 19, 2005, awarded the defendant $1,500 as an attorney's fee.

ORDERED that the appeal from the order entered July 19, 2005, is dismissed;  and it is further,

ORDERED that the order dated June 20, 2005, and the order and judgment are affirmed insofar as appealed from;  and it is further,

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

The appeal from the order entered July 19, 2005, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order entered July 19, 2005, are brought up for review and have been considered on the appeal from the order and judgment (see CPLR 5501[a][1] ).

 The plaintiff failed to comply with a provision of the divorce judgment requiring her to turn over to the defendant specific items of personal property awarded to him, labeled “Defendant's Personal Property” therein.

Contrary to the plaintiff's contention, the Supreme Court properly credited the defendant's evidence of the value of the subject items, “since he was familiar with the items,” and the plaintiff was unable to challenge his testimony (see Cuozzo v. Cuozzo, 2 A.D.3d 665, 768 N.Y.S.2d 636;  see also Nebons v. Nebons, 26 A.D.3d 478, 478-479, 811 N.Y.S.2d 90).

 In light of the plaintiff's refusal to comply with the judgment of divorce directing her to turn over specific items of the defendant's personal property, thereby compelling the defendant to cross-move for enforcement relief, the Supreme Court's award of an attorney's fee was a proper exercise of discretion (see Domestic Relations Law § 237[b];  Nebons v. Nebons, supra at 479, 811 N.Y.S.2d 90).

The plaintiff's remaining contentions are without merit.