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Josef Zalman v. Debra Berley

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


April 22, 2011

JOSEF ZALMAN,
RESPONDENT,
v.
DEBRA BERLEY, APPELLANT.

Appeal from an order of the District Court of Nassau County, Third District (Gary Franklin Knobel, J.), dated December 9, 2009.

Zalman v Berley

Decided on April 22, 2011

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ.

The order denied defendant's motion to dismiss the action.

ORDERED that the order is affirmed, without costs.

In this small claims action, plaintiff seeks to recover from defendant, his former wife, his portion of a federal income tax refund. Defendant moved, pursuant to CPLR 3211 (a) (2), to dismiss the action based on lack of subject matter jurisdiction, alleging that plaintiff was seeking reformation of a matrimonial stipulation of settlement and divorce decree. In opposition, plaintiff submitted documentation which showed that, while still married, the parties had filed a joint 2004 federal income tax return indicating that $9,900 in overpaid taxes was to be applied to their 2005 tax return. Plaintiff alleged that defendant had applied the entire $9,900 refund, calculated in the 2004 joint tax return, to her separate 2005 tax return.

In our opinion, the small claims court has subject matter jurisdiction over this matter, as its jurisdiction includes any "cause of action for money only not in excess of five thousand dollars exclusive of interest and costs" (UDCA 1801), and plaintiff's action is for money only, based on a claim that defendant converted a jointly held asset into her own individual asset. Accordingly, defendant's motion to dismiss the action was properly denied.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.

Decision Date: April 22, 2011

20110422

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