Opinion
CA 02-02035
May 2, 2003.
Appeal from a judgment of Supreme Court, Erie County (Makowski, J.), entered November 20, 2001, which, inter alia, equitably distributed the parties' marital property.
McKELVEY, SIMS, DAVIS, LAZROE, BUFFALO (BARBARA M. SIMS OF COUNSEL), FOR DEFENDANT-APPELLANT.
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY CAMBRIA LLP, BUFFALO (CHRISTOPHER S. MATTINGLY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
"It is well established that '[e]quitable distribution presents issues of fact to be resolved by the trial court, and its judgment should be upheld absent an abuse of discretion'" ( Prasinos v. Prasinos, 283 A.D.2d 913, 913; see Niland v Niland, 291 A.D.2d 876). We perceive no abuse of discretion in this case. Where, as here, the equitable distribution of the parties' assets depends on an assessment of the credibility of the parties, Supreme Court's determination should be accorded great deference ( see Carlson-Subik v. Subik, 257 A.D.2d 859, 862; see also McPheeters v. McPheeters, 284 A.D.2d 968, 969).
Contrary to the contention of defendant with respect to the order in appeal No. 2, the court properly denied his motion to "reopen," which was treated by the court as a motion to renew or to reopen the proceedings. Whether denominated a motion to renew or to reopen, defendant failed to establish that there was any newly discovered evidence ( see Shapiro v. Shapiro, 151 A.D.2d 559, 560-561) or to provide a reasonable justification for his failure to submit such evidence during the trial ( see Orlando v. Rubersi Sales, 255 A.D.2d 802, 804; see also CPLR 2221 [e] [3]; Giardina v. Parkview Ct. Homeowners' Assn., 284 A.D.2d 953, lv dismissed 97 N.Y.2d 700).