Auriemmo v. Auriemmo
Opinion of the Court
The plaintiffs argument, in effect, that she was entitled to interim maintenance for the period of June 28, 2004 through January 15, 2010, is not properly before this Court. Generally, “we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so” (Gurman v Fotiades, 73 AD3d 1126, 1126 [2010]; see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]). The plaintiff previously appealed from an order dated September 28, 2005, which denied her motion for pendente lite maintenance. That appeal was dismissed by decision and order on motion of this Court dated July 17, 2006, for failure to prosecute in accordance with the rules of this Court, and that dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed on that appeal (see Bray v Cox, 38 NY2d at 353; Gurman v Fotiades, 73 AD3d at 1127).
The plaintiffs contention that the Supreme Court erred in failing to direct the defendant to file a qualified domestic relations order (hereinafter QDRO) (see 29 USC § 1056 [d] [3] [B] [ii]) is without merit, as it is the responsibility of the party seeking the QDRO to submit the QDRO to the court on notice (see generally Denaro v Denaro, 84 AD3d 1148 [2011]).
“A Judicial Hearing Officer (hereinafter JHO) derives authority from an order of reference by the court (see CPLR 4311), and an order of reference is made only upon the consent of the
Contrary to the contention of the nonparty Michael R. Cur-ran, the record supports a finding that he engaged in frivolous conduct during the proceedings. Thus, the Supreme Court properly confirmed the report of the JHO recommending the imposition of sanctions against him (see Matter of JK&E Partnership v Chase Manhattan Bank, 276 AD2d 554 [2000]). The court also providently exercised its discretion in awarding the defendant an attorney’s fee arising from Curran’s conduct in engaging in frivolous motion practice {see Tropeano v Tropeano, 35 AD3d 444, 445 [2006]).
The plaintiffs remaining contentions are either without merit or not properly before this Court. Skelos, J.P, Belen, Hall and Roman, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.