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Lee v. Lee

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 1, 2009

YUEN LIN LEE, PLAINTIFF-RESPONDENT,
v.
KWOK WAI LEE, DEFENDANT-APPELLANT.

Appeal from order, Supreme Court, New York County (Laura Visitacion-Lewis, J.), entered July 30, 2008, which, inter alia, sua sponte so-ordered a stipulation between the parties' former attorneys that vacated a judgment of divorce, and denied, as moot, plaintiff's motion to vacate the judgment of divorce, unanimously dismissed, without costs, as taken from a non-appealable order.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Sweeny, Catterson, Freedman, Roman, JJ.

306201/06

The issue raised by defendant on appeal -- that the March 2007 stipulation vacating the January 2007 judgment of divorce was in various respects inaccurate and defective and should not have been so-ordered by the motion court -- is not properly before this Court, since neither party moved on notice to have the stipulation so-ordered and defendant never moved to vacate the stipulation once it was so-ordered (see Rowley v Amrhein, 64 AD3d 469, 470 [2009]; Sholes v Meagher, 100 NY2d 333 [2003]). We note that defendant did not file papers in opposition to plaintiff's motion to vacate the judgment of divorce, the record does not contain a transcript of any oral argument that may have been heard on the return date of that motion, and the record is otherwise insufficient to permit review of the motion court's implicit finding that the stipulation is valid and enforceable (see Hladun-Goldman v Rentsch Assoc., 8 AD3d 73, 73-74 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091201

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