From Casetext: Smarter Legal Research

Madonna v. Madonna

Appellate Division of the Supreme Court of New York, Second Department
Oct 18, 1999
265 A.D.2d 455 (N.Y. App. Div. 1999)

Opinion

Submitted June 29, 1999

October 18, 1999

In a matrimonial action in which the parties were previously divorced, the plaintiff appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Suffolk County (Costello, J.).


ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by deleting therefrom the phrase "9% per annum" and by substituting therefore the phrase "4 1/2% per annum"; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant.

It is well settled that the Supreme Court has broad discretion in accepting or rejecting all or part of any expert testimony (see, Matter of Adirondack Hydro Dev. Corp. v. Warrensburg Bd. and Paper Corp., 205 A.D.2d 925, 926; Hoyt v. Hoyt, 166 A.D.2d 800, 802; Oswald v. Oswald, 154 A.D.2d 817). The determination by the Supreme Court of the value of the marital residence in 1986 and 1993, which incorporated expert testimony, was supported by the record and therefore was not an improvident exercise of discretion.

The Supreme Court had the authority to award interest in this matter and to set the rate at 9% per annum pursuant to CPLR 5004 (see, Selinger v. Selinger, 232 A.D.2d 471). However, the rate of 9% per annum is not mandatory (see, Rodriquez v. New York City Hous. Auth., 91 N.Y.2d 76), and, as a matter of discretion in the interest of justice, we lower the rate to 4 1/2% per annum.

Contrary to the plaintiff's contention, he did not show that the defendant's conduct during this action was willful or contumacious. Therefore, the drastic remedy of preclusion of evidence was not warranted (see, CPLR 3126; Maillard v. Maillard, 243 A.D.2d 448).

The plaintiff's remaining contentions are without merit.

JOY, J.P., FRIEDMANN, SCHMIDT, and SMITH, JJ., concur.


Summaries of

Madonna v. Madonna

Appellate Division of the Supreme Court of New York, Second Department
Oct 18, 1999
265 A.D.2d 455 (N.Y. App. Div. 1999)
Case details for

Madonna v. Madonna

Case Details

Full title:BRUCE R. MADONNA, appellant, v. BARBARA ANN MADONNA, respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 18, 1999

Citations

265 A.D.2d 455 (N.Y. App. Div. 1999)
697 N.Y.S.2d 119

Citing Cases

Mehlenbacher v. Mehlenbacher

" ‘[T]here is no uniform rule for fixing the value of a going business for equitable distribution purposes’ "…

Sinnott v. Sinnott

Contrary to the defendant's contention, he failed to rebut the presumption that the $937,000 was transmuted…