The following papers were read on these motions:Motion Sequence No. 014:Defendant’s Notice of Motion, Affirmation in Support and Exhibits 1Plaintiff’s Affidavit in Opposition and Exhibits 2Motion Sequence No. 016:Plaintiff’s Notice of Motion, Affidavit in Support and Exhibits 3Defendant’s Notice of Cross-Motion and Exhibits 4Plaintiff’s Affidavit in Opposition and Exhibits 5Motion Sequence No. 017:Plaintiff’s Notice of Motion, Affidavit in Support and Exhibits 6Defendant’s Affidavit in Opposition and Exhibits 7Motion Sequence No. 018:Defendant’s Notice of Motion and Exhibits 8Plaintiff’s Affidavit in Opposition and Exhibits 9DECISION AND ORDERPRELIMINARY STATEMENT The Defendant (“Husband”) moves by notice of motion (motion sequence no. 014) seeking an order pursuant to the Civil Practice Law and Rules §4404(b): (1) setting aside the provision in the Decision After Trial dated April 6, 2017 (“Trial Decision”) awarding the Plaintiff (“Wife”) a money judgment in the sum of $226,042 for support arrears, and issuing a new decision on this matter; and (2) setting aside the provision in the Trial Decision directing that the Brinker retirement accounts be distributed in accordance with the principles of Majauskas v. Majauskas, with the Wife to receive fifty percent of the marital portion adjusted for any fluctuations due to market changes, and issuing a new decision that the Husband receive $242,572 from said accounts, representing his separate property, with the remaining proceeds to be equally divided between the parties. The Wife opposes the Husband’s motion in its entirety and cross-moves (motion sequence no. 016) seeking an order: (1) allowing her to trade cash assets awarded to her in the Trial Decision in exchange for the Husband’s equity in the marital residence; (2) awarding her a credit of $139,872 for the carrying charges on the marital residence, which she claims the Trial Decision mistakenly credited to the Husband; and (3) directing a mechanism for the sale of the parties’ extensive wine collection. The Wife also seeks numerous additional corrections to be made to the Trial Decision including but not limited to, the value of the 1956 Thunderbird, the value of the patents regarding their potential future earnings, the distribution of the Citibank overdraft debt, and the statement that the American Express points were property of the Husband’s business.The Wife additionally moves by notice of motion (motion sequence no. 17) seeking an order: (1) modifying the part of the Trial Decision directing the Husband to pay child support in the amount of $1,060 per month to an increased amount of $2,522 per month; (2) directing the Husband to pay $19,006 in child support arrears in addition to the $226,042 which he has already been ordered to pay in the Trial Decision; (3) modifying the part of the Trial Decision ordering that Husband and Wife split their son Adam’s health insurance and co-pays 68 percent/32 percent and instead, to direct the Husband to pay 100 percent of the fees; (4) awarding her counsel fees in the amount of $154,765.23 for XXXXX and $24,289.54 for XXXXX, Esq.; (5) directing the Husband to comply with the Trial Decision in which he was ordered to obtain a $1,000,000 life insurance policy naming the parties’ son as the beneficiary; (6) directing the Husband to provide her with a Get, so that she may obtain an official Jewish divorce; (7) directing the Husband to pay child support beyond the child’s 21st birthday due to his intellectual disability; and (8) directing that the Husband and Wife split the price of the child’s post-secondary education 75 percent/25 percent with the Husband paying the higher percentage. The Wife also reiterates her request from a previous motion (motion sequence no. 016) that the marital residence not be sold and that she be permitted to trade cash assets for the Husband’s equity in the marital residence.The Husband admits that he has been working to obtain an appropriate life insurance policy and that he is completely willing to execute a Get. However, the Husband otherwise opposes the Wife’s motion and cross-moves (motion sequence no, 018) seeking an order: (1) modifying the Trial Decision and crediting him for $200,907.88 in support payments that he argues the court failed to credit him in the Trial Decision; (2) directing equitable distribution of home furnishings, which he claims to be worth about $75,000; (4) crediting him $11,336.95 from the sale of the wine for the money he owes for the wine’s storage; (5) modifying the provision in the Trial Decision ruling that both the original Bryant Avenue residence and the parties’ beach house are both marital assets and (6) modifying the Trial Decision to decrease the amount he owes towards the parties’ 2011 tax debt from $40,000 to $15,000; and (7) correcting the calculation of his average income for the years of 2009 and 2010, which he argues incorrectly included a one-time capital gain. The Husband also reiterates his request from a previous motion (motion sequence no. 014) regarding the Brinker retirement accounts and asks for numerous other modifications to be made to the Trial Decision. He also makes broad accusations of fraud and alleges that the Wife has stolen money from their joint checking account and has been hiding money in a safe deposit box.BACKGROUNDThis case is six years old and has been exceptionally litigious. The parties had a three-week financial trial1 in front of J.H.O. Geoffrey O’Connell resulting in the Trial Decision. Days after the Trial Decision was rendered, J.H.O. O’Connell retired and is therefore no longer available to rule on these motions, which as set forth above, each relate to modifying the Trial Decision.DISCUSSION“Pursuant to CPLR 4404(b), after a nonjury trial, a court may, on the motion of a party or its own motion, set aside its decision and make new findings of fact or conclusions of law” BNG Props., LLC v. Sanborn, 153 A.D.3d 1221 (2d dept. 2017). Specifically, CPLR §4404(b) sets forth as follows:“After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue.”In his first notice of motion (motion sequence no. 014) the Husband seeks to set aside the provision in the Trial Decision that awards the Wife a money judgment in the sum of $226,042 for spousal support. He argues that he only owes $93,930.50 because the court failed to credit him for payments he made totaling $132,111.50. In the Trial Decision, the court found that the Husband “did not offer any proof of his periodic payments of support.” The Husband claims that there is no reason for him to offer proof because he says his Wife has already admitted that he paid a total of $132,111.50. However, the Wife maintains that the Husband’s motion should be denied in its entirety.Next, the Husband seeks to have the provision in the Trial Decision which directs that half of the marital portion of the Brinker retirement accounts ($170,000) be distributed to the Wife set aside pursuant to CPLR §4404(b). He argues that the time-based formula used by the court was inappropriate and that he should have received a separate property credit of $242,572 before the remaining funds were equally distributed between the parties. The Wife once again opposes this request.Following motion sequence no. 014 both parties proceeded in this matter by representing themselves.In motion sequence no. 016, the Wife acknowledges the fact that the Trial Decision states, “The Round Hill property is to be sold.”2 However, she seeks to have the court facilitate a trade of assets so that she may be able to keep the marital residence. She believes that the cash assets she has been awarded are sufficient for her to be able to buy out the Husband’s equity in the residence. The Wife argues that it is essential for her and the parties’ special needs son, XXXX, to remain in the home so that he may remain in the XXXX school district and keep his routine and neighborhood friends to which he has become accustomed.Next, the Wife seeks a credit for the carrying charges of the marital residence, which she says she has paid since the home was purchased. She claims that the Trial Decision incorrectly credits the Husband for the payment of said charges when it was the Wife who actually paid. She argues that she should be credited for the $139,872 that she has paid since the residence was purchased and that the Husband should not receive any credit for these payments.In addition to the issues addressed herein, the parties continue to attack almost every directive of the Trial Decision. They claim that the Trial Decision contains numerous inaccuracies and are unhappy with its ambiguities. Following the three-week trial, J.H.O O’Connell retired days after rendering the Trial Decision. As a result, he is no longer available to hear the parties’ motions seeking modification of the Trial Decision. The unusual circumstances of this case present the issue of whether this Court has the authority to modify J.H.O. O’Connell’s Trial Decision pursuant to CPLR 4404(b).New York Judiciary Law §21 states that a “judge other than a judge of the Court of Appeals, or of the Appellate Division of the Supreme Court, shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge.” Based on the plain language of this statute, this Court would not be permitted to alter a Trial Decision where this Judge was not present at the trial. However, this statute has been interpreted to permit succeeding or substitute judges to hear matters that have not been tried before them so long as the perspective of the trial judge is not essential to the proper evaluation of the post-trial motion. Bonasera v. Town of Islip, N.Y.S.2d 122 (2d dept. 2005); Gayle v. Port Auth., 775 N.Y.S.2d 2 (1st dept. 2004).In Weiss v. City of New York a successor judge properly decided a motion to reargue following the retirement of the original judge. Weiss v. City of New York, 277 A.D.2d 36 (1st dept. 2000). The court held that a successor judge should be permitted to decide a matter where purely legal questions are at issue, all relevant argument is preserved in the record, and the judge is not required to weigh conflicting testimony or assess credibility. Weiss, 277 A.D.2d at 37; See also Plunkett v. Emergency Medical Serv., 234 A.D.2d 162 (1st Dept. 1996). In Weiss a jury acted as the trier of fact. Consequently, only legal questions were left to the judge’s discretion and the determination of the witnesses’ credibility was left solely to the jury. The situation in the current case is quite different.This case seems to be one of first impression in this department. After a review of all the papers, including the lengthy trial transcript, this Court determines that under the circumstances of this case, including three weeks of trial testimony, the perspective of the trial judge is essential to the proper evaluation of these motions. During the trial J.H.O. O’Connell evaluated the credibility of the parties and was required to weigh much conflicting testimony. He exercised his discretion and was able to resolve all the financial issues by rendering the Trial Decision. Although this Court reviewed the trial transcripts, as provided by the parties, it has not had the advantage of seeing and hearing the witnesses first hand. Consequently, this Court finds that it does not have the authority to rule on these post trial motions. As all financial issues have been resolved by the Trial Decision and pursuant to the statute and case law set forth above, it must be left to the Appellate Division to decide whether modification of the Trial Decision is appropriate.Therefore, all of the parties’ respective requests are hereby DENIED.This constitutes the Decision and Order of this Court.DATED: Mineola, New YorkJune 29, 2018
