ROTHMAN v. ROTHMAN (2025)

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (Joseph R. Conway, J.), dated December 12, 2022.  The order, insofar as appealed from, denied the plaintiff's motion, inter alia, pursuant to CPLR 5015(a) to vacate an order of the same court (Marie F. McCormack, Ct. Atty. Ref.) dated April 24, 2021, and an order of the same court (Marie F. McCormack, Ct. Atty. Ref.) entered November 17, 2021, and for an award of counsel fees.

ORDERED that the order dated December 12, 2022, is affirmed insofar as appealed from, with costs.

The facts of this case are more fully set forth in this Court's decision and order on a related appeal (see Rothman v. Rothman, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2025 WL 3290602 [Appellate Division Docket No. 2022–00724;  decided herewith]).  The parties were married on May 2, 1992.  The plaintiff commenced this action on September 26, 2016, for a divorce and ancillary relief.  In July 2020, the parties stipulated to waive their right to a trial and to litigate the issues of, inter alia, equitable distribution, maintenance, outstanding credits claimed by both parties, and an outstanding motion for contempt by submission of papers in lieu of testimony.  After receiving the submissions, the Supreme Court addressed the stipulated issues in an order dated April 24, 2021 (hereinafter the April 2021 order).  Thereafter, the plaintiff moved pursuant to CPLR 4404(b) to vacate certain portions of the April 2021 order, and the motion was denied in an order entered November 17, 2021 (hereinafter the November 2021 order).  The plaintiff then moved, among other things, pursuant to 5015(a) to vacate the April 2021 order and the November 2021 order and for an award of counsel fees.  The court, inter alia, denied the motion.  The plaintiff appeals.

The Supreme Court properly denied those branches of the plaintiff's motion which were pursuant to CPLR 5015(a) to vacate the April 2021 order and the November 2021 order.  CPLR 5015(a) authorizes a court to relieve a party from an order or judgment, on motion, based on the existence of specified grounds, including, among other things, newly-discovered evidence or fraud, misrepresentation, or other misconduct of an adverse party (see id. § 5015[a][2], [3];  Abakporo v. Abakporo, 202 A.D.3d 646, 648–649, 163 N.Y.S.3d 137).  “In addition to the specific grounds set forth in CPLR 5015(a), a court may, in its discretion, vacate its own judgment for sufficient reason and in the interests of substantial justice” (Deutsche Bank Natl. Trust Co. v. Neuman, 214 A.D.3d 952, 953, 184 N.Y.S.3d 612 [internal quotation marks omitted]).

Here, the plaintiff failed to establish why the purported newly discovered evidence she offered in support of those branches of her motion which were pursuant to CPLR 5015(a) to vacate the April 2021 order and the November 2021 order could not have been obtained earlier through due diligence (see Wall St. Mtge. Bankers, Ltd. v. Rodgers, 148 A.D.3d 1088, 1089, 49 N.Y.S.3d 753).  In any event, the purported newly discovered evidence would not have produced a different result (see id.).  Contrary to the plaintiff's contention, she failed to meet her burden of establishing the existence of fraud, misrepresentation, or misconduct on the part of the defendant sufficient to entitle her to vacatur of the April 2021 order or the November 2021 order (see Rusachenko v. Lipkin, 228 A.D.3d 793, 793, 211 N.Y.S.3d 517).  The plaintiff also failed to establish unique or unusual circumstances that would warrant vacating either the April 2021 order or the November 2021 order in the interests of substantial justice (see Cox v. Marshall, 161 A.D.3d 1140, 1142, 78 N.Y.S.3d 212).

In determining whether to award counsel fees, the Supreme Court should “review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions” (Lombardi v. Lombardi, 229 A.D.3d 537, 539, 214 N.Y.S.3d 464 [internal quotation marks omitted];  see Spataro v. Spataro, 211 A.D.3d 1069, 1070, 180 N.Y.S.3d 614).  Here, the court providently exercised its discretion in declining to award the plaintiff counsel fees in connection with her motion, inter alia, pursuant to CPLR 5015(a) to vacate the April 2021 order and the November 2021 order (see O'Brien v. O'Brien, 163 A.D.3d 694, 698, 81 N.Y.S.3d 417).

The plaintiff's remaining contentions are either without merit or not properly before this Court.

CONNOLLY, J.P., GENOVESI, DOWLING and LOVE, JJ., concur.