The following documents were considered in connection with Defendant's motion, dated April 1, 2025, (hereinafter "Motion Sequence # 8"), seeking the entry of an Order granting the following relief:

1. Dismissal of this action; and

2. Such other and further relief as may be just, proper and equitable.

On June 3, 2015, this matrimonial action was commenced with the filing of a Summons and Complaint.

On March 21, 2017, a Judgment of Divorce (hereinafter "Judgment") was entered [*2]dissolving the parties' marriage, which did not merge but was incorporated by reference the terms of a Stipulation dated January 17, 2017 (hereinafter "Stipulation"). Certain provisions of the Stipulation pertained to the parties' former marital domicile known as XXXX (hereinafter "Marital Domicile") including:

"Basic child support will commence at such time when the mother relocates from the marital residence, XXXX, until the mother relocates, the father shall pay the sum of $100/week to the mother, and shall pay the mortgage on the XXXX property.

As and for maintenance, the husband shall pay to the wife the sum of $1,500/month for three (3) years, commencing when the wife vacates the marital residence. The wife shall have the right to remain in the marital residence with the children until the marital residence is sold. During this time of the wife's tenancy at the residence the husband shall be solely responsible to pay the maintenance on the residence, and shall be solely responsible for any necessary repairs.

The wife shall cooperate with any realtors selected by the attorneys to show house for sale for potential buyers.

Plaintiff agrees to advance the sum of $9,000, 6 months of maintenance, to the wife for his maintenance obligation, at the time when she relocates from the marital residence."

The Judgment included the following provisions which mirrored those set forth in the Stipulation:

"ORDERED AND ADJUDGED that pursuant to the Court's decision dated January 17, 2017 Plaintiff shall pay to Defendant the sum of $1,500.00 per month for a period of three years commencing on the date the wife vacates the marital residence, and continuing three (3) years.

Plaintiff agrees to advance the sum of $9,000.00 to the wife for 6 months of his maintenance obligations at the time the wife relocates from the marital home.

ORDERED AND ADJUDGED that Defendant is hereby awarded exclusive occupancy of the marital residence as follows: until the premises are sold within 30 days of the final Judgment. Defendant to corporate with the Realtors selected by the Attorneys to show the house for sale to prospective buyers.

ORDERED AND ADJUDGED that the stipulation dated January 17, 2017, a copy of which is attached, and incorporated by reference into this judgment shall survive and not merge in this judgment, and the parties hereby are directed to comply with every legally enforceable term and provision of such stipulation."

On June 28, 2024, Plaintiff filed a motion by order to show cause (hereinafter "Motion Sequence No. 7") seeking the entry of an order granting the following relief:

1. Enforcing the terms of the Stipulation of Settlement dated January 17, 2017, and Judgment of Divorce, entered May 17, 2017;

2. Finding that the Defendant wife breached the terms of the Stipulation dated January 17, 2017, in that, she failed to timely show the property to prospective purchasers;

3. Compel the Defendant to vacate the former marital residence or issue a warrant of eviction removing the Defendant and all occupants from the property forthwith;

4. Granting Plaintiff possession of XXXX;

5. A money judgment to movant in the amount of $200,000.00 for damages, placing movant/husband in the same economic position he would have occupied had the breaching party performed under the contract;

6. An accounting of the rent collected by the Defendant;

7. Pursuant to Domestic Relations Law § 237(a), award attorney fees and cost to the Plaintiff; and

8. Such other and further relief as this Court deems just and proper (hereinafter "Requested Relief").

Motion Sequence No. 7 was conformed by the Court directing: (1) a return date for Motion Sequence No. 7 of July 19, 2024, at 2:00 p.m.; (2) Plaintiff to complete service upon Defendant and Defendant's attorney of Motion Sequence No. 7 via overnight mail by July 5, 2024; and (3) a briefing schedule for Motion Sequence No. 7 would be set if needed on the return date.

Plaintiff filed Affidavits of Service confirming compliance with the Court's directives regarding service of Motion Sequence No. 7.

On July 19, 2024, a conference was held on the return date for the Motion Sequence No. 7 wherein appearances were made by Plaintiff and Plaintiff's counsel, and no appearance was made by Defendant, nor did Defendant request an adjournment.

On July 22, 2024, an Order was entered directing Plaintiff's counsel to serve Defendant with the Order via overnight delivery by July 26, 2024 and set a briefing schedule for Motion Sequence No. 7 including: (1) August 2, 2024 — Deadline for Defendant to file opposition to the Motion and/or Cross Motion; (2) August 16, 2024 — Deadline for Plaintiff to file opposition to Cross Motion, also serving as the return date for both Motion Sequence No. 7 and any cross motion filed.

On July 31, 2024, Plaintiff filed an Affidavit of Service confirming compliance with the Court's directive to serve Defendant with the above Order.

On September 5, 2024, the self-represented Defendant filed an Affidavit in Opposition to with one exhibit consisting of a series of documents. Defendant's Affidavit asserted, in part, that Defendant was outside the United States of America during the period July 18, 2024, through August 23, 2024, and she opposes the relief sought in the instant motion. While this submission was made outside the briefing schedule set by this Court, the Court accepted and reviewed it in making a determination as to Motion Sequence No. 7.

On September 16, 2024, the undersigned entered a Decision and Order pertaining to Motion Sequence No. 7 providing the following directives:

"Based upon the foregoing, it is hereby

ORDERED that Motion Sequence #7 is granted to the extent that a hearing shall be held to address the relief requested in the instant motion, wherein all parties and counsel must be present in person, which shall commence on February 18, 2025, at 9:00 a.m., and continue day-to-day until completion; and it is further

ORDERED that by January 18, 2025, both parties shall file with the Court (with proof of [*3]service) and serve upon each other via overnight delivery the following pre-hearing disclosure: (1) List of Witnesses to be called to testify at the hearing with the understanding that if a witness is not listed they may be precluded from providing testimony at the hearing; (2) List of Exhibits enumerating each exhibit to be utilized at the hearing with the understanding that if an exhibit is not listed it may be precluded from use at the hearing; and (3) Copies of Exhibits listed in the List of Exhibits with the understanding that if an exhibit is not filed and/or disclosed between the parties it may be precluded from use at the hearing; and it is further

ORDERED that movant shall serve this Decision and Order with Notice of Entry on Defendant and Plaintiff's counsel by September 27, 2024, and shall file an Affidavit of Service by September 27, 2024; and it is further

ORDERED that to the extent any relief sought has not been granted, it is expressly denied.

The foregoing constitutes the Decision and Order of the Court."

Thereafter, the Court received proof of service of the above Decision and Order by Plaintiff on Defendant pursuant to the Court's directive.

On January 17, 2025, Plaintiff's counsel filed a Witness List, Exhibit List and copies of proposed Exhibits with proof of service of same upon Defendant pursuant to the Court's directives.

No pre-hearing disclosure was received from Defendant.

At hearing, appearances were made by Plaintiff and Plaintiff's counsel, while Defendant failed to appear or to request an adjournment. Accordingly, the hearing proceeded in the absence of Defendant. Following the completion of the hearing, this Court entered a Decision and Order (hereinafter "Decision") directing:

"ACCORDINGLY, IT IS HEREBY:

ORDERED that it is determined that the Defendant has violated the terms of the Stipulation and Judgment, by failing to cooperate with realtors in the marketing and sale of the Marital Domicile, and the parties are hereby directed to comply with all provisions of the Stipulation and Judgment, including those pertaining to the marketing and sale of the Marital Domicile; and it is further

ORDERED that Plaintiff is hereby granted exclusive occupancy of the Marital Domicile commencing on March 28, 2025, at which time Defendant and any other occupants of the Marital Domicile shall vacate the premises with all tangible personal property (excluding any fixtures, including, but not limited to: light fixtures, appliances, etc.), with the understanding that any tangible personal property remaining in the Marital Domicile thereafter shall be deemed abandoned; and it is further

ORDERED that a Warrant of Ejectment shall be entered simultaneously with this Decision and Order permitting the Westchester County Sheriff to remove Defendant from the Marital Domicile on March 28, 2025; and it is further

ORDERED that by February 28, 2025, Plaintiff's counsel shall serve Defendant, via traceable overnight delivery, with a copy of this Decision and Order with a Notice of Entry, and by that date shall file with the Court a copy of same with proof of service including an overnight delivery tracking receipt; and it is further

ORDERED that any relief requested not expressly granted herein is denied; and it is [*4]further

ORDERED that Plaintiff's counsel shall order a copy of the Court Transcript for the hearing, pay the entire cost of same, and shall submit to be so ordered by April 18, 2025.

The foregoing constitutes the Decision and Order of the Court."

On April 1, 2025, Defendant filed Motion Sequence No. 8, seeking the above-referenced relief.

On April 11, 2025, Plaintiff filed opposition to Motion Sequence No. 8.

No other submissions were received with respect to Motion Sequence No. 8.

Defendant argues that she received the Decision on March 28, 2025, and wasn't given enough time to leave the subject property which she asserts must be sold and that she has been cooperative in that process. Defendant further claims that she invested approximately $80,000.00 into the subject property during the period 2008 to present, receipts for which were sent to Plaintiff's counsel. While Defendant submitted an unsworn letter to this Court, it was disregarded and not considered in the determination of this motion for the reasons set forth below.

Plaintiff opposes the application asserting that this litigation was resolved pursuant to a stipulation of settlement the terms of which were incorporated into a judgment of divorce entered by this Court wherein Defendant was to vacate the subject property by a date certain and to cooperate with realtors in the marketing of the property. Plaintiff argues that Defendant has intentionally failed to comply with these obligations and for the past eight years has collected rents from tenants located in the property thereby unjustly enriching herself while residing in the country of Jamaica. With respect to Defendant's claim that she has incurred costs for repair of the property, Plaintiff asserts that Defendant is not entitled to an award as Defendant has not provided proof of payment.

Finally, Plaintiff and Plaintiff's counsel assert that Plaintiff is entitled to affirmative relief including the following (hereinafter "Plaintiff's Requested Relief"):

"The Plaintiff is entitled to relief from the maintenance award in the judgment as the Defendant conduct is willful, contumacious and created hardship to plaintiff.

In the alternative The Plaintiff is entitled to a judgment Three hundred and thirty thousand ($332,000.00), the mortgage payments made from March 2027 to date. The award for recoupment of the mortgage payment is justified where the same remain undisputed while the Defendant had exclusive possession and control of the marital domicile."^[FN2]

Wherefore, we respectfully submit this court to deny defendant's motion and include penalties or sanctions for defendant non-compliance with the judgment of divorce. Additionally, given the movant's actions in prolonging this matter, we request this court consider awarding counsel fees to my client pursuant to the Domestic Relations Law §§ 238, which provides for legal fees in enforcement proceedings."^[FN3]

Letters which are unsworn are not admissible proof and therefore have no evidentiary value (Simms v. North Shore University Hosp., 192 AD2d 700 [2d Dept 1993]; see also, Brodie v. Board of Managers, 226 AD3d 555, [1st Dept 2024]; Timothy M.M. v. Doreen R., 188 AD3d 1711 [4th Dept 2020]; Patricia "YY" v. Albany County Department of Social Services, 238 AD2d 672, [3rd Dept 1997]. Here, Defendant submitted the Unsworn Letter which has no evidentiary value and has not been considered by this Court when making the determinations set forth herein pertaining to the instant motion.

Pursuant to New York State Civil Practice Law and Rules (hereinafter "CPLR") § 3211, "(e) Number, time and waiver of objections; motion to plead over. At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted. (f) Extension of time to plead. Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order." Clearly, the time to either move for dismissal or to seek the extension of time to make such request has long passed, and therefore Defendant's request for dismissal is denied. Moreover, to the extent that Defendant's application can be construed in any way as a motion for leave to renew or reargue the Decision pursuant to CPLR § 2221, the requested relief is denied.

Included in Plaintiffs submissions in opposition to Motion Sequence No. 8, without the filing of a notice of cross motion, Plaintiff has sought this Court to grant Plaintiff's Requested Relief. Examining the propriety of a trial court granting entertaining a request for relief made by a litigant, in submissions filed in opposition to a motion, without having filed a notice of cross motion, the Appellate Division Second Department has noted:

"Given the language of CPLR 2215, and the contexts in which it is applicable, the most reasonable interpretation of the statute is that a party seeking relief in connection with another party's motion is, as a general rule, required to do so by way of a cross motion, at least to have a right that the request be *65 determined on the merits. Otherwise, a party who seeks relief by way of a notice of cross motion would be in a position less favorable than that of a party who merely makes the request without a notice of cross motion: the party who makes a formal cross motion would be required to comply with the notice and service requirements and deadlines imposed by the statute, but a party seeking relief merely by requesting it would enjoy greater flexibility.

Nonetheless, courts retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215. Litigants, however, must be cognizant of an important distinction between the two situations: a party in compliance with CPLR 2215 is entitled to have its cross motion considered; a party not in compliance with the statute must hope that the court opts, in the exercise of its discretion, to entertain the request. Thus, we are in agreement with our colleagues in the Appellate Division, Third Department, who, in Fox Wander W. Neighborhood Assn. v. Luther Forest Community Assn., 178 AD2d at 872, 577 N.Y.S.2d 729, held that, even in the absence of an explicit notice of cross motion, the Supreme Court is not "prohibited" from entertaining the [*6]nonmoving party's request for relief.

As with most matters addressed to a court's discretion, more than one factor is relevant, including the need to encourage careful, forthright practice. Other relevant factors include the interrelatedness of the relief requested by the nonmoving party and the relief requested in the main motion (see Rodriguez v. County of Rockland, 43 AD3d 1026, 1027—1028, 842 N.Y.S.2d 488), the prominence in the opposition papers of the affirmative request for relief and the movant's opportunity to address that request (see id. at 1027—1028, 842 N.Y.S.2d 488; Tulley v. Straus, 265 AD2d 399, 401, 696 N.Y.S.2d 503; Catania v. Lippman, 98 AD2d 826, 826—827, 470 N.Y.S.2d 487), and the interest of judicial economy.

Another consideration for careful practitioners is the availability of appellate review. A request for relief made in the absence of a notice of cross motion is not a "motion made upon notice" (CPLR 5701[a][2] ), so an order granting or denying the request is not appealable as of right, and permission to appeal is necessary (see CPLR 5701[c]; Blam v. Netcher, 17 AD3d 495, 496, 793 N.Y.S.2d 464). By contrast, generally, a party may appeal as of right to challenge the disposition of a motion or cross motion made on notice (see CPLR 5701[a] )."

As Defendant failed to file a notice of cross motion, this Court must determine if it will exercise its discretion with respect to Plaintiff's Requested Relief and for the reasons set forth herein, declines to do so. Review of the relief sought by Plaintiff and that sought by Defendant in Motion Sequence No. 8 confirm that they are not interrelated. To the contrary, they are entirely different as Defendant seeks dismissal of this action, while Plaintiff seeks relief from his spousal maintenance obligations to Defendant, a judgment in favor of Plaintiff against Defendant for $332,000.00 for recoupment of mortgage payments, and an award of attorneys' fees to Plaintiff from Defendant. Moreover, the relief sought is largely referenced at the very end of Plaintiff's submissions and not in a prominent location and the interests of judicial economy would not be served by entertaining such requested relief at this time.

Notably, even if this Court were to consider Plaintiff's Requested Relief, Plaintiff has provided no evidentiary support for the relief requested. With respect to the request pertaining to spousal support, Plaintiff has failed to demonstrate a substantial change in circumstances that would warrant such modification (Connor v. Connor, 171 AD3d 746 [2d Dept 2019]); and Plaintiff failed to file with this Court a statement of net worth (Barton v. Barton, 137 AD3d 723 [2d Dept 2016]). With respect to the request for the entry of a money judgment arising out of mortgage payments alleged to have been made by Plaintiff for the subject property, Plaintiff failed to provide any compelling evidence to this Court to support such relief such as proof of the alleged payments (McKay v. Grosbeck, 117 AD3d 810 [2d Dept 2014]; see also, Lorne v. Lorne, 217 AD3d 412 [1st Sept 2023]). Finally, an award of attorneys' fees would also be unwarranted as Plaintiff's counsel failed to furnish this Court with an engagement agreement between she and Plaintiff, or any billing statements pertaining to this post judgment litigation (Yakobowitz v. Yakobowicz, 217 AD3d 733 [2d Dept 2023] [internal citations omitted]).

Based upon the foregoing, Plaintiff's Requested Relief is denied.

To the extent relief has been requested and not granted or otherwise addressed herein, it is hereby denied.

Based upon the foregoing, it is hereby

ORDERED that Motion Sequence No. 8 is denied; and it is further

ORDERED that Plaintiff's Requested Relief is denied; and it is further

ORDERED that Plaintiff's counsel shall serve this Decision and Order with Notice of Entry on Defendant by April 23, 3035, and shall file an Affidavit of Service by April 23, 2025; and it is further

ORDERED that to the extent any relief sought has not been granted, it is expressly denied.

The foregoing constitutes the Decision and Order of the Court.