Opinion
June 5, 1989
Appeal from the Supreme Court, Westchester County (DiFede, J.H.O.).
Ordered that the appeals from the orders and amended judgments entered October 6, 1987, and November 25, 1987, respectively, are dismissed, as they were superseded by the order and amended judgment entered May 17, 1988, and because the appellant is not aggrieved by the order and amended judgment entered November 25, 1987 (see, CPLR 5511); and it is further,
Ordered that the order and amended judgment entered May 17, 1988, is affirmed insofar as appealed from; and it is further,
Ordered that the defendant is awarded one bill of costs.
The plaintiff's procedural contentions do not warrant reversal. In the order and amended judgment entered October 6, 1987, the Supreme Court, Westchester County, in effect, vacated the original judgment and issued a new judgment (see, Horan v. Town of Brookhaven, 29 A.D.2d 563). Further, the plaintiff was not aggrieved by the order and amended judgment entered November 25, 1987. That order and amended judgment was entered when the court granted his motion upon the defendant's default in answering it. The defendant moved to vacate her default, which, under the circumstances, was properly granted in the order and amended judgment entered May 17, 1988 (see, CPLR 5015).
Turning to the merits, we note that, following the commencement of the action for a divorce and ancillary relief, the plaintiff increased the mortgage on the marital residence to decrease any distributive award which the defendant might receive based upon its value. Thus, the Supreme Court properly calculated the defendant's distributive award based upon the amount of the mortgage existing at the time the action was commenced. Further, the Supreme Court properly disallowed the plaintiff's claims for selling costs because the plaintiff never intended to sell the property. Therefore, the court's award to the defendant of $10,700 was entirely proper. Mollen, P.J., Thompson, Kunzeman and Rubin, JJ., concur.