Opinion
2021–02868 Index No. 205/18
11-22-2023
Brooke GIGLIOTTI, respondent, v. Angelo GIGLIOTTI, appellant.
Nicole Ramon, West Babylon, NY, for appellant. Arthur G. Trakas, Astoria, NY (Andrew B. Schultz of counsel), for respondent.
Nicole Ramon, West Babylon, NY, for appellant.
Arthur G. Trakas, Astoria, NY (Andrew B. Schultz of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action for a divorce and ancillary relief, the defendant appeals from a judgment of divorce of the Supreme Court, Queens County (Anna Culley, J.), entered January 25, 2021. The judgment of divorce, insofar as appealed from, upon a decision of the same court entered March 17, 2020, made after a nonjury trial, awarded the plaintiff 100% of the parties’ interest in the marital residence.
ORDERED that the judgment of divorce is affirmed insofar as appealed from, with costs.
The parties were married on August 20, 2011, and have one minor child. The defendant has been incarcerated since 2016, and is not scheduled for release until 2033. The plaintiff commenced this action in or about January 2018. A nonjury trial was scheduled on February 28, 2020. There is no dispute that the defendant's attorney did not appear and did not properly request an adjournment pursuant to the rules of the trial part. The defendant appeared by phone pursuant to an arrangement made with the Federal Bureau of Prisons.
In a decision, made after the trial, the Supreme Court, inter alia, awarded the plaintiff 100% of the parties’ interest in the marital residence, the parties’ only marital asset, and allocated 100% of the parties’ debt to the plaintiff. A judgment of divorce, upon the decision, was entered on January 25, 2021. The defendant appeals.
"The grant or denial of a motion for ‘an adjournment for any purpose is a matter resting within the sound discretion of the trial court’ " ( Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646, quoting Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 ). Here, the Supreme Court providently exercised its discretion in denying the defendant's application for an adjournment where his counsel did not properly seek an adjournment pursuant to the trial part's rules and subsequently failed to appear at trial.
" Domestic Relations Law § 236 mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider a number of statutory factors" ( Fields v. Fields, 15 N.Y.3d 158, 170, 905 N.Y.S.2d 783, 931 N.E.2d 1039 ). "The trial court is vested with broad discretion in making an equitable distribution of marital property ... and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed" ( Halley–Boyce v. Boyce, 108 A.D.3d 503, 504, 969 N.Y.S.2d 467 [internal quotation marks omitted]). The statutory factors include "any other factor which the court shall expressly find to be just and proper" ( Domestic Relations Law § 236[B][5][d][16] ; see Fairchild v. Fairchild, 149 A.D.3d 810, 811, 51 N.Y.S.3d 613 ). "Consequently, the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances" ( Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 420, 881 N.Y.S.2d 369, 909 N.E.2d 62 ). It is well settled that "[e]quitable distribution does not necessarily mean equal distribution" ( Gafycz v. Gafycz, 148 A.D.3d 679, 680, 48 N.Y.S.3d 464 [internal quotation marks omitted]).
Here, the Supreme Court providently exercised its discretion in awarding the plaintiff 100% of the parties’ interest in the marital residence, where the defendant was unable to contribute financially to the mortgage loan or to the support of the parties’ child due to his long-term incarceration, and where the plaintiff was also responsible for 100% of the parties’ marital debt (see Jones v. Jones, 182 A.D.3d 586, 586, 120 N.Y.S.3d 831 ).
The defendant's remaining contentions are without merit.
BRATHWAITE NELSON, J.P., GENOVESI, FORD and TAYLOR, JJ., concur.