Opinion
2001-07728, 2001-10441
Submitted May 21, 2002
August 19, 2002.
In an action for a divorce and ancillary relief, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Yancey, J.), dated June 11, 2001, which, inter alia, denied his motion, denominated as one pursuant to CPLR 4403 to reject the report of a Judicial Hearing Officer (Platt, J.H.O.) and, upon rejecting the report, vacate an order of the Judicial Hearing Officer, dated October 6, 1999, awarding the defendant certain pendente lite child support and maintenance, and granted the defendant's cross motion pursuant to Domestic Relations Law § 244 for leave to enter a judgment for certain child support and maintenance arrears, and (2) a judgment of the same court, entered July 12, 2001, which is in favor of the defendant and against him in the principal sum of $53,501.44.
Ernest H. Hammer, New York, N.Y., for appellant.
Regosin, Edwards, Stone Feder, New York, N.Y. (Saul E. Feder of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., DAVID S. RITTER, SONDRA MILLER, LEO F. McGINITY, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
The plaintiff husband made a motion, inter alia, denominated as one pursuant to CPLR 4403 to reject the report of the Judicial Hearing Officer (hereinafter the JHO) and, upon rejecting the report, to vacate an order of the JHO, dated October 6, 1999, awarding the defendant certain pendente lite relief as to child support and maintenance. However, the reference, made on consent, directed the JHO to hear and determine such issues, not hear and report (see Perrelli v. Perrelli, 284 A.D.2d 517; CPLR 4201; CPLR 4301; CPLR 4311). Thus, as noted by the Supreme Court, a motion denominated as one pursuant to CPLR 4403 to reject the JHO's "report" does not lie (see Chalu v. Tov-Le Realty Corp., 220 A.D.2d 552) . In any event, the plaintiff took but failed to perfect, an appeal from the order dated October 6, 1999, which was dismissed for failure to prosecute. As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal which was dismissed for lack of prosecution, although we have inherent discretion to do so (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750; Bray v. Cox, 38 N.Y.2d 350). Here, we decline to exercise this discretion.
Entry of a money judgment for child support and maintenance arrears due and owing to the defendant was proper (see Domestic Relations Law § 244; Dox v. Tynon, 90 N.Y.2d 166; Henry v. Henry, 272 A.D.2d 520; Wolfson v. Public Adm'r of Nassau County, 282 A.D.2d 743).
The plaintiff's remaining contentions are without merit or concern matters dehors the record (see Long v. Long, 251 A.D.2d 631; Gotard v. Gotard, 165 A.D.2d 824).
PRUDENTI, P.J., RITTER, S. MILLER and McGINITY, JJ., concur.