KERZNER v. KERZNER

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

Rina KERZNER, Plaintiff-Appellant, v. Stuart J. KERZNER, Defendant-Respondent.

Rina Kerzner, Plaintiff-Respondent, v. Stuart J. Kerzner, Defendant-Appellant.

Decided: August 12, 1999

MAZZARELLI, J.P., WALLACH, RUBIN and ANDRIAS, JJ. Plaintiff-Appellant, Pro Se. Michael L. Paikin, for Stuart J. Kerzner. Judd Burstein, for Plaintiff-Respondent.

Judgment, Supreme Court, New York County (David Saxe, J.), entered April 23, 1997, which, inter alia, distributed the parties' marital property, unanimously affirmed, without costs.   Order, same court (Eileen Bransten, J.), entered on or about February 2, 1998, which, insofar as appealed from, granted defendant husband's motion to resolve in his favor the issue of the amount of rental income that plaintiff wife received from certain property, unanimously affirmed, without costs.

 The subject business was owned solely by the husband, and its value was thus plainly affected by his active participation therein.   As such, the business was properly valued as of the commencement of the action (see, Heine v. Heine, 176 A.D.2d 77, 87, 580 N.Y.S.2d 231, lv. denied 80 N.Y.2d 753, 587 N.Y.S.2d 905, 600 N.E.2d 632).   The trial court was entitled to reject the husband's self-serving explanation for the decline in value of the business over the course of the litigation, as part of the court's credibility assessment of the testimony.   Furthermore, the record supports the trial court's finding that the husband was attempting to minimize his worth by causing a post-commencement falloff of his business (see, Siegel v. Siegel, 132 A.D.2d 247, 250-251, 523 N.Y.S.2d 517, lv. denied 74 N.Y.2d 602, 541 N.Y.S.2d 985, 539 N.E.2d 1113;  Cushman & Wakefield v. 214 E. 49th St. Corp., 218 A.D.2d 464, 467-468, 639 N.Y.S.2d 1012, lv. denied 88 N.Y.2d 816, 651 N.Y.S.2d 406, 674 N.E.2d 336).   The equal division of the appreciated value of the business and its pension plan is supported by evidence of the wife's many valuable contributions to the business, direct as well as indirect (see, Hartog v. Hartog, 85 N.Y.2d 36, 46-47, 623 N.Y.S.2d 537, 647 N.E.2d 749;  Milewski v. Milewski, 197 A.D.2d 562, 602 N.Y.S.2d 660).   The awards of basic and additional spousal maintenance are warranted in view of the parties' lavish pre-divorce standard of living (see, Hartog v. Hartog, supra, at 51-52, 623 N.Y.S.2d 537, 647 N.E.2d 749) and the wife's continuing child-custody responsibilities and limited employment experience (see, Ingram v. Ingram, 208 A.D.2d 593, 617 N.Y.S.2d 361;  McDonald v. McDonald, 155 A.D.2d 929, 547 N.Y.S.2d 752).   The husband's claim of a spiraling decline in his financial condition can be considered on his motion for a downward modification of maintenance and child support.

The order of February 2, 1998, was a proper sanction for the wife's repeated and willful refusal to obey the court's disclosure orders.   We have considered the parties' remaining contentions and find them to be unavailing.

MEMORANDUM DECISION.