Russell J. Seifried, Plaintiff,
Kelly D. Seifried, Defendant.
Wilkins & Griffin P. L. L. C., Lake Placid (John T. Wilkins of counsel), for plaintiff.
Smith, Dwyer & Bliss, P. C., Lake Placid (Matthew H. Dwyer of counsel), for defendant.
James P. Dawson, J.
The parties were married July 26, 1986 and have one child. During the marriage, the defendant obtained a degree in radiological technology and now has a license to practice as a
radiological technician. The plaintiff is a correction officer and has a pension through his employer which is apparently the main asset in this marriage. The plaintiff commenced this divorce action on July 31, 1998. On or about May of 1998, the defendant filed for chapter 7 bankruptcy protection. She was granted a discharge by order of the Bankruptcy Court dated October 20, 1998. When the defendant answered the complaint, she asserted as an affirmative defense that the filing of her bankruptcy acted as a defense to potential equitable distribution claims, relying on the following language in her bankruptcy papers where the plaintiff was listed as a creditor holding an unsecured nonpriority claim:
" Any claim against debtor herein for a 'marital' or 'separate' property settlement or for equitable distribution under the ... Domestic Relations Law ... including any claim that debtor must or shall hold Russell Seifried harmless from marital debts or pay for debts, in whole or in part, in name [sic] of Russell J. Seifried and including any claim that debtor must repay any monies used during the marriage based upon any personal injury award."
On this motion, plaintiff moves pursuant to CPLR 3211 (b) to dismiss the defense of bankruptcy as it implicates equitable distribution issues and alternatively moves pursuant to CPLR 3212 for summary judgment declaring the defendant's equitable distribution obligation relating to her college degree, professional license, and an IRA to be support obligations that are not dischargeable in bankruptcy.
The defendant opposes the plaintiff's motion and cross-moves for summary judgment on her affirmative defense of bankruptcy arguing that for plaintiff to have protected his equitable distribution rights in the face of her bankruptcy, plaintiff should have submitted a proof of claim or filed an objection to the discharge. The defendant also cross-moves to preclude plaintiff from presenting evidence pertaining to the value of her radiological license due to plaintiff failing to identify the proposed testimony and/or request information relative to the value of the license in the statement of proposed distribution. If the Court does not grant the preclusion sought, defendant alternatively moves in limine to preclude any expert testimony from plaintiff regarding the value of her license. Additionally, defendant seeks an extension of the trial date due to this bankruptcy issue of " first impression" and seeks additional time to research it.
Plaintiff's counsel opposes that portion of the cross motion which seeks to preclude expert testimony regarding the value of defendant's license contending that the information needed to formulate an expert valuation has not yet been provided because defendant's deposition testimony has not yet been transcribed. Plaintiff's counsel also opposes the adjournment request.
The Court heard the arguments of counsel at Special Term on February 23, 2001 ...