PAUL J. MULA, Respondent,
JO-ANNE MULA, Appellant.
Calendar Date: May 4, 2017
Larkin, Ingrassia & Tepermayster, LLP, Newburgh (Azra J.
Khan of counsel), for appellant.
Blatchly & Simonson, New Paltz (Bruce D. Blatchly of
counsel), for respondent.
Before: Peters, P.J., McCarthy, Egan Jr., Devine and Mulvey,
MEMORANDUM AND ORDER
from an order of the Supreme Court (McGinty, J.), entered
January 28, 2016 in Ulster County, which granted
plaintiff's motion to renew and denied defendant's
cross motion for an order directing plaintiff to pay certain
(hereinafter the husband) and defendant (hereinafter the
wife) were married in November 1968. During the course of
their marriage, the parties acquired two condominiums in St.
Croix, unit N-3 and unit J-10. In January 2011, the husband
commenced the underlying divorce action. Subsequently, a
trial ensued and, in December 2014, Supreme Court granted,
among other things, a divorce and determined that the
parties' two St. Croix condominiums were marital property
that should be sold, with "[t]he net proceeds of the
sale... divided evenly between the parties." Thereafter,
the husband appealed and the wife cross-appealed. In February
2015, while the appeals were pending, the wife moved, by
order to show cause, for an order "clarifying" the
term "net proceeds, " arguing that proceeds from
sales of the condominiums should be used to satisfy a margin
loan taken out against her separate investment, which she
alleged constituted the funds used to purchase the
condominiums, prior to being divided between her and the
husband. The husband opposed the motion. In an April 2015
order, Supreme Court determined that it needed more
information "to clarify how net proceeds should be
calculated... as it specifically related to the St. Croix
condominiums, " and determined that a hearing should be
held on the matter. That hearing occurred in August 2015.
September 2015, before Supreme Court could render a further
decision, this Court determined that, among other things,
unit J-10 was the wife's separate property, but that unit
N-3 was marital property, and, more specifically, that
"unit N-3... was purchased with the use of marital
property as collateral" (131 A.D.3d 1296, 1301 n 5
). In light of this Court's decision, the husband
moved to renew his opposition to the wife's motion to
"clarify." Subsequently, the wife cross-moved for
an order directing the husband to, among other things, pay
his share of a margin loan allegedly used to acquire unit
N-3. In a January 2016 order, Supreme Court granted the
husband's motion and determined, among other things, that
he had no obligation with regard to the payment of the margin
loan. As such, the court denied the wife's cross motion.
The wife appeals, and we affirm.
initial matter, "a motion to renew must be 'based
upon new facts not offered in the prior motion that would
change the prior determination... [and] shall contain
reasonable justification for the failure to present such
facts on the prior motion'" (Kahn v Levy,
52 A.D.3d 928, 929 , quoting CPLR 2221 [e]). Here, the
husband relied on this Court's decision, rendered after
Supreme Court held a hearing on the wife's motion to
"clarify, " which unambiguously determined that
"unit N-3... was purchased with the use of marital
property as collateral" (131 A.D.3d at 1301 n 5). As
this Court's findings contradicted the wife's claim
that the parties financed the purchase of unit N-3 through a
margin loan taken out against her separate property, the
court did not abuse its discretion in granting the
husband's motion to renew (see generally
Hurrell-Harring v State of New York, 112 A.D.3d 1217,
1218 ) . Moreover, the court correctly found
that this Court's decision, decisively resolving the
ambiguity that the wife alleged gave rise for the need for
clarification, warranted denying the wife's cross motion
upon the conclusion that "the husband is not responsible
for the wife's separate margin loan obligation."
This Court's determination that the funds used to
purchase unit N-3 were derived from marital property is law
of the case, binding on Supreme Court (see Kenney v City
of New York, 74 A.D.3d 630, 631 ; Caleb v
Sevenson Envtl. Servs., Inc., 72 A.D.3d 1517, 1518
), and the wife's contentions that the August 2015
hearing evidence establishes that she should be entitled to
use the proceeds of the sale of unit N-3 to satisfy a margin
loan debt is an improper attempt to relitigate an issue that
she previously had a full and fair opportunity to litigate
(see Briggs v Chapman, 53 A.D.3d 900, 901 )
. "[I]n accordance with the sound
policy that, when an issue is once judicially determined,
that should be the end of the matter as far as [j]udges and
courts of [coordinate and lesser] jurisdiction are
concerned" (id. at 902 [internal quotation
marks and citation omitted]), we find no reason to disturb
the court's determination that the wife was not entitled
to satisfaction of her separate debt through the proceeds of
the sale of unit N-3.
Peters, P.J., Egan Jr., Devine and Mulvey, JJ., concur.
that the order is affirmed, with costs.
 We note that the issue of whether, in the
first instance, Supreme Court was correct in holding a
hearing to allow for additional proof is not before this
Court, as the husband did not appeal from that order (see
generally Matter of ...