Opinion
May 5, 1986
Appeal from the Supreme Court, Nassau County (Burke, J.).
Appeal from the order entered December 4, 1984 dismissed, without costs or disbursements. So much of the order as adhered to the original determination granting the defendant husband's motion for reverse partial summary judgment is not appealable since a judgment has been entered thereon (see, Matter of Aho, 39 N.Y.2d 241, 248). On oral argument, the parties stipulated to withdraw the balance of the appeal from the order with respect to examinations before trial since discovery had already been completed, thus rendering that part of the appeal moot.
Judgment reversed, on the law and facts, without costs or disbursements, and so much of the order entered December 4, 1984, as adhered to the original determination in an order dated August 21, 1984, which granted the defendant's motion for reverse partial summary judgment, and so much of the order dated August 21, 1984 as granted the defendant's motion for reverse partial summary judgment vacated, and said motion denied.
Special Term granted the defendant husband's motion for reverse partial summary judgment subsequent to the enactment of CPLR 3212 (e), which proscribes such relief in matrimonial actions. The amendatory statutes do, however, vest the courts with discretion to avoid injustice or an unfeasible result by invoking the former procedure in a particular instance (CPLR 10003; see, Wald v Wald, 119 A.D.2d 569; Hinden v Hinden, 119 A.D.2d 547). However, in light of the strong policy considerations underlying the enactment of the amendatory statutes, which seek to prevent inequity and economic hardship to the nonmoving spouse (see, Hinden v Hinden, supra; Kahrs v Kahrs, 111 A.D.2d 370), and the absence of prejudice to the defendant, it is clear that under the facts of this case the defendant's motion should have been denied. Lazer, J.P., Niehoff, Kooper and Spatt, JJ., concur.