Opinion
11015-11015A-11015B-11015C-11016-11016A-11016B Index 310169/16, V–2344/19, V–3414/19, V-3414-19/19A, O-3412/19, O-3412-19/19A, O-3412-19/19B
04-09-2020
In re OLGA P., Petitioner-Appellant, v. IOANNIS Y., Defendant-Respondent. Olga P., Petitioner–Appellant, v. Ioannis Y., Defendant–Respondent.
Olga P., appellant pro se. Myra L. Freed and Lawrence B. Goodman, New York, for respondent.
Olga P., appellant pro se.
Myra L. Freed and Lawrence B. Goodman, New York, for respondent.
Gische, J.P., Mazzarelli, Webber, Moulton, JJ.
Order, Supreme Court, New York County (Michael L. Katz, J.), entered November 27, 2018, appointing the wife a guardian ad litem, unanimously affirmed, without costs. Appeal from order, Supreme Court, New York County (Steven Liebman, Special Referee), entered January 30, 2019, which terminated an order for supervised discovery, unanimously affirmed, without costs. Orders, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about April 4, 2019, which dismissed the wife's custody and family offense petitions for lack of jurisdiction, unanimously affirmed, without costs. Order, Supreme Court, New York County (Michael L. Katz, J.), entered April 18, 2019, which, inter alia, directed the husband to pay certain monthly expenses incurred by the wife, interim maintenance and the wife's interim counsel fees, unanimously affirmed, without costs. Order, Family Court, New York County (J. Machelle Sweeting, J.), entered on or about May 6, 2019, which denied the wife's objection to an order of the same court (Kevin Mahoney, Support Magistrate), entered on or about March 27, 2019, which dismissed her petition for support on the ground that she had a motion pending before the Supreme Court seeking identical relief, unanimously affirmed, without costs. Order, Family Court, New York County (Gail Adams, Referee), entered on or about June 3, 2019, which dismissed the wife's family offense petition with leave to seek the same relief in the Supreme Court, unanimously affirmed, without costs.
We find that the Supreme Court providently exercised its discretion in appointing a guardian ad litem for the wife because, as a result of her deteriorating mental health, she was incapable of prosecuting or defending the case and assisting counsel (see CPLR 1201 ; Anonymous v. Anonymous, 256 A.D.2d 90, 681 N.Y.S.2d 494 [1st Dept. 1998], lv denied 99 N.Y.2d 509, 760 N.Y.S.2d 101, 790 N.E.2d 275 [2003] ).
The wife's appeal from the January 30, 2019 order of the Special Referee has no merit. In that order, the Special Referee stated that "the referenced discovery supervision as directed was concluded and completed." It was not an improvident exercise of discretion for the Special Referee to oversee or conclude supervised discovery. Supreme Court appropriately appointed the Special Referee pursuant to CPLR 3104(a) in light of the wife's frustration of discovery. The need for supervised discovery was alleviated after the wife was appointed a guardian ad litem who retained a matrimonial counsel for the wife.
The Family Court properly dismissed the wife's custody and support petitions for lack of jurisdiction. Since the Family Court is a court of limited jurisdiction, absent a referral from the Supreme Court, it does not have original jurisdiction over proceedings for custody and visitation while an action for divorce is pending ( N.Y. Const, art VI, § 13 [b][2]; Matter of O'Neil v. O'Neil , 193 A.D.2d 16, 19, 601 N.Y.S.2d 628 [2d Dept. 1993]; Poliandro v. Poliandro , 119 A.D.2d 577, 500 N.Y.S.2d 744 [2d Dept. 1986], appeal dismissed 68 N.Y.2d 908, 508 N.Y.S.2d 948, 501 N.E.2d 597 [1986] ). The same rule applies to proceedings for child support or spousal support ( N.Y. Const, art VI § 13 [b][4]; LaPiana v. LaPiana , 67 A.D.2d 966, 413 N.Y.S.2d 462 [2d Dept. 1979] ).
We decline to disturb the pendente lite award. Ordinarily, an aggrieved party's remedy for any perceived inequities in a pendente lite award is a speedy trial, and no exception is warranted here (see Turret v. Turret, 147 A.D.3d 467, 468, 46 N.Y.S.3d 598 [1st Dept. 2017] ; Nimkoff v. Nimkoff, 69 A.D.3d 501, 892 N.Y.S.2d 757 [1st Dept. 2010] ; Gad v. Gad, 283 A.D.2d 200, 724 N.Y.S.2d 305 [1st Dept. 2001] ).
Although the Supreme Court and Family Court have concurrent jurisdiction to entertain and issue orders of protection, the Family Court properly dismissed the wife's family offense and violation petitions (see Domestic Relations Law § 252 ). At the time of the filing of the family offense petitions, the divorce case had been pending for almost three years before Justice Katz and the issue of an order of protection was intrinsically intertwined with the matrimonial action. The legislature's grant of concurrent jurisdiction was not intended to give an advantage to one side by allowing the same issues to be litigated in two forums. We have considered the wife's remaining contentions and find them unavailing.