N.S., Plaintiff, v. F.S., Defendant. (2026)

The following documents were considered in connection with Plaintiff's motion, dated August 4, 2026 (hereinafter "Motion Sequence No. 2"), seeking the entry of an order granting the following relief:

1. Enforcement and modification of the settlement parties' settlement agreement;

2. Reimbursement for property related expenses, federal tax liabilities and other amounts owed;

3. Modification of the qualified domestic relations order; and

4. Such other and further relief as may be just, proper and equitable.

PAPERS NUMBERED

Order to Show Cause/Affidavit in Support/

Exhibits A-C 1-5

Affirmation in Opposition/

Exhibits 1-5b (6 exhibits) 6-11  ¹

Unsworn Reply Submission/

Exhibit a 12-13  ²

Relevant Factual and Procedural History

On November 1, 2022, this matrimonial action was commenced with Plaintiff's filing of a summons with notice and complaint,³ seeking dissolution of the parties' marriage and other ancillary relief.

On October 23, 2023, the parties entered into a stipulation of settlement which was placed upon the record by counsel and memorialized in a court transcript which was so-ordered after the parties had completed an allocution by the undersigned (hereinafter "Stipulation of Settlement").⁴

On December 20, 2023, the Stipulation of Settlement was amended by a document entitled first addendum to the stipulation of settlement dated October 23, 2023, which was so-ordered by the undersigned (hereinafter "Addendum").⁵

On January 3, 2024, a judgment of divorce dissolving the parties' marriage was entered by the undersigned (hereinafter "Judgment of Divorce"),⁶ which incorporated by reference, but did not merge, the terms of the Stipulation of Settlement and Addendum.

In January of 2024, Plaintiff's then counsel filed a notice of entry of the Judgment of Divorce with proof of service of same.⁷

On August 5, 2026, Motion Sequence No. 2,⁸ was filed by order to show cause seeking the above-referenced relief, which was conformed (hereinafter "Conformed Order"),⁹ providing directives regarding service and a briefing schedule, including but not limited to directing the parties that "no reply submissions" shall be accepted, whereafter said briefing schedule was extended pursuant to future order.¹⁰

On September 4, 2026, answering submissions  ¹¹ were filed by Defendant's counsel, which included Defendant's Affirmation in Opposition (hereinafter "Defendant's Affirmation") which annexed a series of exhibits, providing both opposition to the pending motion and requested affirmative relief without filing a formal cross-motion, all of which must be disregarded for the reasons set forth herein-below.

On September 14, 2026, Plaintiff filed an improper reply submission, being in violation of this Court's Conformed Order, and as such these improper reply submissions were disregarded at the outset of this Court's review of Motion Sequence No. 2.

No further submissions were made pertaining to Motion Sequence No. 2

Legal Analysis

A. Failure to Comply with CPLR § 2106.

It is well-settled in New York State that "moving papers generally consist of three items: (1) a notice of motion or order to show cause; (2) affidavits and affirmations with exhibits; and (3) a memorandum of law" (David D. Siegel, New York Practice § 246 [6th ed 2018]). Failure to include "an affidavit by someone with personal knowledge of the pertinent facts" compels summary denial of the motion (Yaffe v. Shkreli, 187 AD3d 592 [1st Dept 2020]; United Talmudic Academy of Kiryas Joel v. Khal Bais Halevi Religious Corp., 232 AD2d 547 [2d Dept 1996]).

Pursuant to New York Civil Practice Law and Rules (hereinafter "CPLR") § 2106:

"(a) The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury ... may be used in an action in New York in lieu of and with the same force and effect as an affidavit ... Such affirmation shall be in substantially the following form:

"I affirm this ____ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)" [emphasis added] (CPLR § 2106)."

The Court of Appeals has provided useful guidance with respect to the way courts are to interpret statutes:

" 'It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature' (Patrolmen's Benevolent Assn. v. City of New York, 41 NY2d 205, 208 [391 N.Y.S.2d 544, 359 N.E.2d 1338 (1976)]; see also, *843 Longines-Wittnauer v. Barnes & Reinecke [Inc.], 15 NY2d 443, 453 [261 N.Y.S.2d 8, 209 N.E.2d 68 (1965)]). As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. As we have stated: 'In construing statutes, it is a well-established rule that resort must be had to **410 the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning' (Tompkins v. Hunter, 149 NY 117, 122—123 [43 N.E. 532 (1896)]; see also, Matter of Raritan Dev. Corp. v. Silva, 91 NY2d 98 [667 N.Y.S.2d 327, 689 N.E.2d 1373 (1997)])" (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998]).

In examining the words employed by the Legislature in the applicable statute, CPLR § 2106 includes the following relevant language, "[s]uch affirmation shall be in substantially the following form." "In the absence of contrary legislative intent or any qualifying language in the statute, the word 'shall' is deemed to be mandatory" (Saunders v. Smith, 99 AD2d 671 [4th Dept 1984]; see also, 97 NY Jur. 2d Statutes § 17). Notably, the second portion of the highlighted section of the statute is the word "substantially," which means "in a substantial manner" (see http://www.merriam-webster.com/dictionary/substantially), with the word "substantial" meaning "largely but not wholly that which is specified" (see http://www.merriam-webster.com/dictionary/substantial). Lastly, the adjective "substantially"/"substantial" in the phrase "substantially the following form" describes the noun "form," which means "the shape and structure of something as distinguished from its material" (see https://www.merriam-webster.com/dictionary/form).

As the Legislature included the word "shall" in CPLR § 2106, this Court determines that the word "shall" was intended by the Legislature to be a mandatory requirement, for which this Court has no discretion to overlook. Moreover, this Court determines the word "substantially"/"substantial" to mean largely but not wholly that which is specified. This Court finds that, when read within the statute, "in substantially the following form," substantially acts as an adjective describing the "form" of the following required admonition, meaning its structure as opposed to its substance. Collectively, this Court determines that the meaning of "in substantially the following form" is that an affiant need not use the exact verbiage of the admonition as specified within CPLR § 2106, so long as the substance of the admonition provides the following: (1) the affiant affirms on a particular date; (2) under the penalties of perjury; (3) under the laws of New York; (4) which may include a fine or imprisonment; (5) that the foregoing is true; and, (6) that the affiant understands that the document may be filed in an action or proceeding in a court of law.

This interpretation is supported by recent decisions throughout the State of New York, which confirm that an affirmation which fails to comport with the requirements of CPLR § 2106, shall be inadmissible and must be disregarded by the Court (see Great Lakes Insurance SE v. American Steamship Owners Mutual Protection and Indemnity Association Inc., 228 AD3d 429 [1st Dept 2024]). "Subsequent to January 1, 2024, courts have found that a statement simply affirming the following under the penalties of perjury fails to acknowledge the laws of New York and the possibility of fines or imprisonment and as a result is not in admissible form and cannot be relied upon. Inasmuch as the oath is not something the court is permitted to infer and the purpose of the requirement impresses on the witness the gravity of his factual account, an affirmation lacking the language that CPLR 2106 now requires fails to demonstrate an appreciation for that gravity and is ultimately not a verification at all." (Gransard v. Hutchinson, 2024 WL 1957086 [Supreme Court NY County, Latin J.] [internal citations and quotation marks omitted] affd for the reasons stated by Latin, J., Gransard v. Hutchinson, 227 AD3d 491 [1st Dept 2024]).

In support of Motion Sequence No. 2, Defendant's counsel submits Defendant's Affirmation, which begins with the following language:

"[redacted], hereby affirms under the penalties of perjury:"

Clearly, Defendant's Affirmation fails to include the required admonition required by CPLR § 2106, and therefore must be disregarded along with the exhibits annexed thereto. Accordingly, same have not been considered with respect to this Court's determination as to Motion Sequence No. 2. However, for completeness, this Court will review the affirmative relief requested within Defendant's Affirmation, and whether or not such relief could have been considered if the motion submission was filed in admissible form.

B. Affirmative Relief Requested in Opposition Without Formal Cross-Motion.

The Appellate Division, Second Department has consistently held that a trial Court may consider, in its discretion, a non-moving party's request for relief, so long as certain factors are considered, including but not limited to: (1) the need to encourage careful, forthright practice; (2) the "interrelatedness" of the relief requested by the non-moving party and the underlying motion; (3) the prominence in the opposition papers of the non-moving party's request for affirmative relief and the movant's opportunity to address that request; and, (4) the interest of judicial economy:

"Given the language of CPLR 2215, and the contexts in which it is applicable, the most reasonable interpretation of the statute is that a party seeking relief in connection with another party's motion is, as a general rule, required to do so by way of a cross motion, at least to have a right that the request be *65 determined on the merits. Otherwise, a party who seeks relief by way of a notice of cross motion would be in a position less favorable than that of a party who merely makes the request without a notice of cross motion: the party who makes a formal cross motion would be required to comply with the notice and service requirements and deadlines imposed by the statute, but a party seeking relief merely by requesting it would enjoy greater flexibility.

Nonetheless, courts retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215. Litigants, however, must be cognizant of an important distinction between the two situations: a party in compliance with CPLR 2215 is entitled to have its cross motion considered; a party not in compliance with the statute must hope that the court opts, in the exercise of its discretion, to entertain the request. Thus, we are in agreement with our colleagues in the Appellate Division, Third Department, who, in Fox Wander W. Neighborhood Assn. v. Luther Forest Community Assn., 178 AD2d at 872, 577 N.Y.S.2d 729, held that, even in the absence of an explicit notice of cross motion, the Supreme Court is not "prohibited" from entertaining the nonmoving party's request for relief.

As with most matters addressed to a court's discretion, more than one factor is relevant, including the need to encourage careful, forthright practice. Other relevant factors include the interrelatedness of the relief requested by the nonmoving party and the relief requested in the main motion (see Rodriguez v. County of Rockland, 43 AD3d 1026, 1027—1028, 842 N.Y.S.2d 488), the prominence in the opposition papers of the affirmative request for relief and the movant's opportunity to address that request (see id. at 1027—1028, 842 N.Y.S.2d 488; Tulley v. Straus, 265 AD2d 399, 401, 696 N.Y.S.2d 503; Catania v. Lippman, 98 AD2d 826, 826—827, 470 N.Y.S.2d 487), and the interest of judicial economy.

Another consideration for careful practitioners is the availability of appellate review. A request for relief made in the absence of a notice of cross motion is not a "motion made upon notice" (CPLR 5701[a][2] ), so an order granting or denying the request is not appealable as of right, and permission to appeal is necessary (see CPLR 5701[c]; Blam v. Netcher, 17 AD3d 495, 496, 793 N.Y.S.2d 464). By contrast, generally, a party may appeal as of right to challenge the disposition of a motion or cross motion made on notice (see CPLR 5701[a] )" (Fried v. Jacob Holding, Inc., 110 AD3d 56 [2d Dept 2013]).

Notwithstanding this Court's prior determination that Defendant's Affirmation lacks the proper admonition required by CPLR § 2106, and assuming arguendo that Defendant's Affirmation was admissible in the form required for an affirmation, it sought two prongs of affirmative relief without the filing of a formal notice of cross-motion, being: (1) $3,500.00 in legal fees incurred due to the need to respond to and oppose Motion Sequence No. 2; and, (2) requesting that a proposed qualified domestic relations order (hereinafter "Exhibit 5-a"),¹² and a separate proposed domestic relations order (hereinafter "Exhibit 5-b"),¹³ be executed by this Court without further notice or response from Plaintiff.

Here, balancing the factors set forth in Fried and without making determinations regarding whether relief would have been granted or not, this Court determines that the affirmative relief included within Defendant's Affirmation could have been considered, in-part, if the motion submission had been filed in proper admissible form. Initially, this Court could have in its discretion, considered the $3,500.00 fee application of Defendant based on Plaintiff's filing of Motion Sequence No. 2, given that such relief is generally expected opposition in post-judgment enforcement litigation, thereby being "interrelated" enough for this Court to consider without the need for a formal cross-motion, further finding that any opposition to such application offered by Plaintiff would be essentially identical to the arguments made in support of Motion Sequence No. 2, regarding the merits of the application. However, Defendant's affirmative request for the submission of Exhibit 5-a and Exhibit 5-b as proposed domestic relations orders would not have been considered by this Court. This further affirmative request included within Defendant's Affirmation provides two (2) documents to the Court for consideration, providing Plaintiff no opportunity to submit a counter-proposed order for consideration, or general opposition to the application. Consequently, this Court finds that the second affirmative request is not interrelated enough, fails to provide any semblance of due process to Plaintiff in responding to same, substantially outweighing any benefit to judicial economy.

Notwithstanding this Court's likely ability to review Defendant's fee application, and its likely inability to review the proposed domestic relations orders without a formal cross-motion before it, Defendant's Affirmation remains inadmissible, and as such must be disregarded along with the exhibits annexed thereto.

C. Plaintiff's Requested Relief.

Upon review of the submissions made to this Court in Motion Sequence No. 2, this Court finds that a determination cannot be made on submission due to the existence of facts in dispute which must be referred to a hearing to be scheduled at a status conference scheduled to be held herein. Of note, even if this Court had accepted Defendant's Affirmation in opposition to Motion Sequence No. 2, notwithstanding its failure to comply with the required admonition of CPLR § 2106, issues of fact would have still existed which required the referral of this post-judgment application to hearing.

Accordingly, it is hereby

ORDERED that Motion Sequence No. 2 is hereby granted to the extent that the relief requested therein is hereby referred to a hearing to be scheduled at a status conference to be held on September 18, 2026 at 2:00 p.m., wherein all parties and counsel shall appear in person; and it is further

ORDERED that all counsel appearing in this post-judgment litigation shall comply with 22 NYCRR § 1400.2 and 22 NYCRR § 1400.3, by filing a fully executed engagement agreement pertaining to this post-judgment litigation, and statement of clients' rights and responsibilities by September 17, 2026; and it is further

ORDERED that by September 17, 2026, Defendant's counsel shall serve a copy of this Decision and Order with Notice of Entry by NYSCEF Filing, and by that date shall file proof of service with the Court; and it is further

ORDERED that any relief requested not expressly granted herein is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: September 15, 2026

White Plains, New York

ENTER:

JAMES L. HYER

FOOTNOTES

1.   Note: The Affirmation in Opposition and Exhibits filed by Defendant's counsel are referenced for completeness only as they have been disregarded by this Court for failure to comply with CPLR § 2106.

2.   Note: The unsworn reply submission and exhibit filed by Plaintiff is referenced for completeness only as they have been disregarded by this Court for being in violation of its directive not to file such reply submissions.

3.    See, NYSCEF Doc. Nos. 1 & 2.

4.    See, NYSCEF Doc. No. 79.

5.    See, NYSCEF Doc. No. 91.

6.    See, NYSCEF Doc. No. 92.

7.    See, NYSCEF Doc. Nos. 94 & 95.

8.    See, NYSCEF Doc. Nos. 96-100.

9.    See, NYSCEF Doc. No. 110.

10.    See, NYSCEF Doc. Nos. 112 & 113.

11.    See, NYSCEF Doc. Nos. 114-120.

12.    See, NYSCEF Doc. No. 119.

13.    See, NYSCEF Doc. No. 120.

James L. Hyer, J.