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DECISION & ORDER Nearly six years after the parties were divorced, the defendant husband moved, inter alia, to vacate
that portion of the judgment of divorce which awarded the plaintiff exclusive occupancy of the marital residence, to compel
sale of those premises, and for reimbursement for the cost of repairs and improvements made to the premises at his expense.
The plaintiff wife cross-moved, inter alia, for upward for modification of the maintenance provision of the judgment of divorce
and for counsel fees. In a memorandum decision dated February 14, 1986, the Supreme Court denied the defendant husband's motion and granted the
plaintiff wife's cross motion to the extent of awarding her upward modification of maintenance and counsel fees. The memorandum
decision directed that the plaintiff "Settle order no notice". However, no order was submitted by the plaintiff's attorney
until February 1988. The defendant husband protested entry of the order, contending that pursuant to 22 NYCRR 202.48 the plaintiff's
cross motion should be dismissed as abandoned. The plaintiff's attorney then submitted an affirmation in which he explained
that he had timely prepared the order, but that he had "forgotten" the order and had inadvertently misplaced the case file.
We note that although the court signed the order without making any express ruling on the issue of timeliness, the order did
provide that in view of the extended delay in the submission of the order by the plaintiff's counsel, the defendant is "granted
the right to move to modify the order retroactively". Thus, the court implicitly excused the delay.

Professional & Technical
October 23
LawApp Publishers
Innodata Book Distribution Services Inc

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