ANNIBAFFA v. ANNIBAFFA

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

Eugenie ANNIBAFFA, Plaintiff-Appellant, v. Hubert ANNIBAFFA, Defendant-Respondent.

Decided: November 21, 2006

TOM, J.P., ANDRIAS, SAXE, GONZALEZ, SWEENY, JJ. Stanley N. Kutcher, P.C., New York (Ronald Cohen of counsel), for appellant. Rodriguez & Fuentes, P.C., Bronx (Savina P. Playter of counsel), for respondent.

Order, Supreme Court, Bronx County (John Ostermann, Special Referee), entered March 14, 2006, which granted defendant husband an equitable share of the marital estate, including plaintiff wife's employee pension/annuity plans and the marital residence, unanimously modified, on the law, the matter remanded to the Special Referee for further proceedings in accordance herewith, and otherwise affirmed, without costs.

 Defendant's motion for reargument was properly granted, even though untimely (Liss v. Trans Auto Sys., 68 N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851 [1986] ), because the court had overlooked facts offered on his prior motion to vacate the default judgment of divorce, specifically, his lack of notice of the equitable distribution hearing.   This was not a frivolous motion warranting sanctions.   Nonetheless, the case should be remanded because the Referee failed to evaluate the marital property sufficiently (Capasso v. Capasso, 119 A.D.2d 268, 506 N.Y.S.2d 686 [1986] ), or to set a valuation date on the property (Domestic Relations Law § 236[B] [4][b] ).