By Austin, J.P.; Roman, Miller and Brathwaite Nelson, JJ. Divya Uttamchandani, res-ap, v. Prakash Uttamchandani, appellant-res — (Index No. 2045/12) In a matrimonial action, the defendant appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated October 5, 2017. The order, insofar as appealed from, denied the defendant’s cross motion, in effect, for leave to reargue his opposition to those branches of the plaintiff’s prior motion which were for a determination as to certain credits to be paid to the plaintiff from the defendant’s share of the net proceeds of the sale of the former marital residence. The order, insofar as cross-appealed from, denied those branches of the plaintiff’s motion which were for leave to enter a money judgment and for counsel fees. ORDERED that the appeal is dismissed; and it is further, ORDERED that the order is reversed insofar as cross-appealed from, on the law, those branches of the plaintiff’s motion which were for leave to enter a money judgment and for counsel fees are granted, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith, including a hearing, and the entry of an appropriate money judgment; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. The parties were divorced by judgment of divorce dated May 14, 2015. After the sale of the former marital residence, the plaintiff moved, inter alia, for leave to enter a money judgment for arrears under the judgment of divorce and for an award of counsel fees. The defendant cross-moved “for reconsideration of” his opposition to the plaintiff’s prior motion to enforce the terms of the parties’ judgment of divorce pertaining to the distribution of the proceeds of the sale of the former marital residence (see Uttamchandani v. Uttamchandani, __ AD3d __ [Appellate Division Docket No. 2016-08856; decided herewith]). The Supreme Court denied the plaintiff’s motion on the ground that it was unclear what amount was due after distribution of the net proceeds of the sale of the former marital residence. The court also denied the defendant’s cross motion. The defendant appeals, and the plaintiff cross-appeals. The defendant’s cross motion “for reconsideration of” his opposition to a prior motion was, in actuality, one for leave to reargue (see Liang v. Yi Jing Tan, 140 AD3d 1029, 1029; Basile v. Wiggs, 117 AD3d 766, 766). As the denial of a motion for leave to reargue is not appealable, the defendant’s appeal must be dismissed (see Alvarez v. Jawaid, 163 AD3d 746; Perry v. Kone, Inc., 147 AD3d 1091, 1093; Humsted v. New York City Health & Hosps. Corp., 142 AD3d 1139, 1140). The Supreme Court should not have summarily denied those branches of the plaintiff’s motion which were for leave to enter a money judgment and for an award of counsel fees. A party to a matrimonial action may make an application for a judgment directing the payment of arrears at any time prior to or subsequent to the entry of a judgment of divorce (see Domestic Relations Law §244; McCoy v. McCoy, 117 AD3d 806, 808). Here, the court did not have the discretion to deny the plaintiff’s application for leave to enter a money judgment since she established that arrears were due and unpaid (see Seale v. Seale, 154 AD3d 1190, 1195; Wolfson v. Public Adm’r of Nassau County, 282 AD2d 743, 743; Felton v. Felton, 175 AD2d 794, 795). Where, as here, there are triable issues of fact as to the amount of arrears, an evidentiary hearing should be held (see Goldkranz v. Goldkanz, 82 AD3d 699, 700; D’Anna v. D’Anna, 17 AD3d 400, 401). Furthermore, upon determining the amount of arrears owed, the court should have considered the plaintiff’s request for prejudgment interest (see Domestic Relations Law §244; Goldkranz v. Goldkranz, 82 AD3d at 700) and an award of counsel fees (see Domestic Relations Law §§237[c]; 238; Schiffer v. Schiffer, 55 AD3d 714, 715). Accordingly, the matter must be remitted to the Supreme Court, Westchester County, for further proceedings, including a hearing, and the entry of an appropriate money judgment. AUSTIN, J.P., ROMAN, MILLER and BRATHWAITE NELSON, JJ., concur.
By Dillon, J.P.; Cohen, Duffy and Christopher, JJ. MATTER of Ricardo Atkinson, res, v. Robert Kelly, etc. ap — (Index No. 2365/16) Charny & Wheeler, Rhinebeck, NY (Russell G. Wheeler of counsel), for respondent. In a proceeding pursuant to CPLR article 78 to review a determination of the City of Mount Vernon Police Department dated March 30, 2016, Robert Kelly, as Commissioner of the City of Mount Vernon Police Department, the City of Mount Vernon, and the City of Mount Vernon, Department of Public Safety, Bureau of Police appeal from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), dated April 17, 2017. The judgment granted the petition to vacate the March 30, 2016, determination, which rejected the petitioner’s rescission of his resignation from the City of Mount Vernon Police Department, and directed the City of Mount Vernon Police Department to reinstate him to his position as prisoner attendant, with back pay. ORDERED that the judgment is affirmed, with costs. The petitioner was a civilian prisoner attendant employed by the City of Mount Vernon Police Department (hereinafter the Police Department). On July 27, 2015, a detainee died in her holding cell at police headquarters while the petitioner was on duty. The New York State Attorney General’s Office (hereinafter the OAG) investigated the death of the detainee and issued a report noting that it had recommended to the Police Department that the Police Department take administrative action regarding the petitioner’s conduct on July 27, 2015. On March 14, 2016, the petitioner was summoned to the office of his supervisor, Richton Ziadie, and told to resign or a formal disciplinary proceeding would be commenced against him. The respondent Robert Kelly, the former Commissioner of the Police Department, submitted an affidavit in which he stated that he had authorized Ziadie to resolve the disciplinary issue by accepting a letter of resignation from the petitioner. The petitioner tendered his resignation letter immediately after his meeting with Ziadie.
