Supreme Court, Bronx County

Decided on July 2, 2026

Index No. XXXXX/2014

Wanda Y. Negrón, J.

[*1]

Over six years and seven months after the parties had resolved all ancillary issues in their divorce action and the proposed judgment of divorce and supporting documents were to be settled for the Court's review and signature, the Plaintiff, through subsequent counsel, moves to "restore" the instant matrimonial action to the Court's calendar to facilitate its "completion"; to stay a support modification proceeding pending in the Bronx Family Court; to remove and [*2]consolidate said Bronx Family Court modification proceeding with the instant disposed, but prejudgment matrimonial action; to otherwise modify the underlying "So-Ordered" settlement agreement once the matters are consolidated; and for an award of counsel fees.

Based upon the unique facts presented in this motion sequence, this Court finds that deeming this matrimonial action as abandoned, when the parties continue to litigate the modification of the pending "So-Ordered" settlement agreement and do not otherwise seek for this matter to be dismissed, even years after the proposed judgment and supporting documents were to be settled, would not bring the repose to court proceedings that 22 NYCRR § 202.48 was designed to effectuate, and would otherwise waste judicial resources. Moreover, the Plaintiff establishes sufficient good cause, albeit scarcely, to not deem this matter abandoned, as his prior attorney was charged with settling the proposed judgment of divorce and attendant documents. As such, the Plaintiff is granted one final extension to settle the proposed judgment of divorce and supporting documents on notice to the Defendant within sixty (60) days of entry of this Decision and Order on Motion.

However, the Court denies the additional application to stay or to remove and consolidate the pending support modification proceeding pending in the Bronx County Family Court, as while the above-entitled divorce action is otherwise viable, there are no ancillary issues to adjudicate except for the ministerial act of signing the judgment of divorce upon review of the settled judgment roll, and as to the pending support modification proceeding, same is in the middle of a fact-finding hearing and appears to be not otherwise viable. Lastly, the Plaintiff's application for counsel fees is denied not just for his failure to include a statement of net worth with his moving papers, but based upon the merits of the motion.

Facts

On April XX, 2019, the parties and their respective attorneys, neither of whom are presently an attorney of record, appeared before a jurist previously assigned to I.A.S. Part 18 and resolved all ancillary issues in the above-entitled divorce action by way of a written and an oral stipulation of settlement. As to the former, the ancillary issues of custody, parental access, and child support were resolved by a written, "So-Ordered" agreement (hereinafter "So-Ordered Divorce Stipulation"). The certified copy of the So-Ordered Divorce Stipulation provides, to the extent relevant on this motion sequence, that:

"9. The Final Order of Child Support issued by Magistrate [Redacted] entered on [Redacted], 2017 is modified as follows:

a. The Plaintiff/father shall pay $191 per week in basic child support effective March 8, 2019;

b. The retroactive/arrears amount shall be set as $45184 effective March 5, 2019; said amount shall be reduced by any payment made pursuant to the Order of this court or the Family Court that was paid after March 5, 2019 that was in excess of $191 Per week. Arrears shall be paid at a minimum rate of $34 per week.

c. All other provisions remain in effect.

10. This agreement shall survive and not merge into any future judgment of divorce and shall survive if the instant action is dismissed."

Appended to the So-Ordered Divorce Stipulation were "VOIR DIRE" allocution affidavits. The parties waived the ancillary issues of maintenance, equitable distribution and [*3]counsel fees, by way of an oral stipulation of settlement, as reflected by the transcript of inquest held on April XX, 2019, which provides, in part, that:

"THE COURT: Both parties are waiving maintenance?

[DEFENDANT'S PRIOR ATTY]: Correct.

[PLAINTIFF'S PRIOR ATTY]: Yes.

[PLAINTIFF]: Yes.

THE COURT: Both parties are waiving equitable distribution of marital property?

[PLAINTIFF]: Yes.

[DEFENDANT'S PRIOR ATTY]: Correct.

THE COURT: And both parties are waiving any further awards of counsel fees and experts' fees?

[DEFENDANT'S PRIOR ATTY]: Correct.

MR. ROMAN: Yes."^FN1

The Court proceeded to allocute the parties on the So-Ordered Divorce Stipulation and the waivers set forth on the record. The Court granted the Plaintiff a judgment of divorce pursuant to DRL § 170 (7) and further directed that "[t]he proposed judgment of divorce, along with the supporting papers, must be submitted to the Court within the next 60 days." In other words, the papers had to be settled on or before June 24, 2019. This Court takes judicial notice that as of the date of this Decision and Order on Motion, approximately such papers have not been settled.

Over five years later, on or about June XX, 2024, the Plaintiff, through his present attorneys, filed a modification petition in the Bronx County Family Court, to which the Docket Number F-XXXXX-24/24A was assigned (hereinafter "Bronx Family Court Modification Proceeding"), wherein he sought the following relief:

"[t]he [So-Ordered Divorce Stipulation] should be modified Nunc Pro Tunc as follows:

i. The basic child support obligations should be modified Nunc Pro Tunc to January 1, 2015 and set at $25.00 per month.

ii. The obligation to pay for childcare should be vacated Nunc Pro Tunc to at least March 8, 2019 and ideally to September 2018 when Respondent actually stopped regularly utilizing childcare services due to the child's enrollment in Pre-Kindergarten and [Plaintiff] given credit towards child support paid and/or arrears accrued."

However, annexed to the petition filed in the Bronx Family Court Modification Proceeding, the Plaintiff submitted an uncertified, purported copy of the So-Ordered Divorce Stipulation referenced hereinabove, which contains an added provision not otherwise contained within the certified copy: namely that "[c]hild care costs shall be no longer required effective March 8, 2019." The petition specifically references this provision and as noted hereinabove, seeks enforcement of same.

The Plaintiff, his present attorney, and the Defendant with different counsel, appeared before a Support Magistrate nearly one year later, on July XX, 2025, for return of process, and a transcript of this conference is included in this motion record.

This Court takes judicial notice that a Consent to Change Attorney form was executed on July XX, 2024, and filed with this Court on August XX, 2024, wherein the Plaintiff appeared by his present attorneys in the above-entitled action,

The parties and their present attorneys appeared before the Support Magistrate for a settlement conference on September XX, 2025, and a transcript of this conference is included in this motion record. The parties and their present attorneys appeared for a third time before the Support Magistrate for the first day of fact-finding trial on December XX, 2025, and a transcript of this trial is included in this motion record.

After the commencement of the fact-finding trial in the Bronx Family Court Modification Proceeding, on February XX, 2026, the Plaintiff filed the underlying Order to Show Cause, wherein seeking an Order (1) restoring this divorce action to the Court's calendar; (2) staying the Bronx Family Court Modification Proceeding; (3) consolidating the Bronx Family Court Modification Proceeding into this divorce action; (4) modifying the So-Ordered Divorce Stipulation and directing the New York State Child Support Unit to "reconcile" the account bearing NY CASE ID XXXXX to give Plaintiff credit for any overpayment due to Plaintiff based on the [So-Ordered Divorce Stipulation] as modified by this Court; (5) directing the Defendant to pay $5,000.00 in legal fees; and (6) granting such additional or alternative relief as the Court may deem just and proper.

This Order to Show Cause was signed on February XX, 2026. Oral argument was heard on March XX, 2026, a transcript of which is included in this motion record. During oral argument, the Court was informed that the previously scheduled fact-finding dates of March XX, 2026, and March XX, 2026, had been vacated.

The motion is fully briefed and deemed fully submitted as of April XX, 2026, when the transcript of oral argument was provided to the Court.

Analysis

I. The Plaintiff's application to "restore" the underlying matrimonial action to the active calendar is GRANTED to the extent that, for good cause shown, albeit barely, the Plaintiff is granted leave to settle a proposed judgment of divorce, alongside all supporting documents as otherwise required by statute or court rule, within sixty days of entry of the underlying Decision and Order on Motion.

At the conclusion of divorce actions, whether by agreement or after trial, pursuant to subdivision (a) of 22 NYCRR § 202.48, the party that is granted a judgment of divorce is normally charged with settling the proposed judgment of divorce, the proposed findings of fact and conclusions of law, among other documents otherwise required by statute and court rules. This Uniform Trial Court Rule instructs that:

"[p]roposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted."

The Court of Appeals clarified that 22 NYCRR § 202.48, which is otherwise silent with respect to decisions that do not contain a submit or settle directive, applies only to matters when the court explicitly directs that the proposed or judgment be settled or submitted for its signature [*4](Funk v Barry, 89 NY2d 364 [1996]). This is equally applicable when the boxes within a short former that refer to "settle order" or "submit" order are checked by the court (see Shanklin v Wilhelmina Models, Inc., 246 AD3d 414, 415 [1st Dept 2026]).

Subdivision (b) of 22 NYCRR § 202.48, which is equally applicable in matrimonial actions, instructs that "[f]ailure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown." The party who was otherwise charged with settling the proposed judgment risks having the matter deemed abandoned and at risk for dismissal they fail to comply with this rule (see e.g. Rotbert v Rotbert, 140 AD3d 672 [1st Dept 2016] [the plaintiff's seven-year delay to settle a proposed judgment of divorce in conjunction with his failure to provide any explanation for the delay warranted vacating the judgment and dismissing the matrimonial action for failure to prosecute]; Pirzada v Pirzada, 241 AD3d 707 [2d Dept 2025] [the plaintiff's fifteen-year delay to settle a proposed judgment of divorce in a prior divorce action, during which time the marriage continued, and his failure to establish good cause for such delay, deeming the prior action and oral stipulation as abandoned, and denying the motion to dismiss the subsequently-filed action]; Madigan v Klumpp, 173 AD2d 593 [2d Dept 1991] [defendant's failure to settle a proposed judgment until eighteen months after he was charged with doing same pursuant to a decision after trial in a matrimonial action, notwithstanding the pendency of post-decisions applications for reargument, in conjunction with his explanation for the delay that he was under the impression that it was his spouse who was charged with settling same, which did not amount to good cause, warranted granting the wife's motion to strike the proposed judgment as abandoned and other dismissing the counterclaim and action]; Iyageh v Iyageh, 77 Misc 3d 292 [Sup Ct, Kings County 2022, Sunshine, J.] [the plaintiff's failure to settle the proposed judgment of divorce packet for twelve years, in conjunction with his failure to offer any explanation for such delay, warranted denial of the motion to restore the matter to the calendar]).

Nevertheless, "[i]t is within the sound discretion of the court to accept a belated order or judgment for settlement" (Gargano v Gargano, 221 AD3d 787, 788-789 [2d Dept 2023] [internal quotation marks and citations omitted]). "Moreover, a court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources" (id. at 789 [internal quotation marks and citations omitted]).

In the instant matter, on April XX, 2019, the Court expressly granted the Plaintiff a judgment of divorce pursuant to DRL § 170 (7) after finding that all ancillary issues were resolved by the parties and conducting an inquest, and further directed that the proposed judgment of divorce and supporting documents had to be submitted to the Court for signature within sixty days—in other words, or on or before June XX, 2019. This explicit directive by the Court not only charged the Plaintiff, as the "successful" party who was granted a judgment of divorce, with settling the proposed judgment and all other documents otherwise required by 22 NYCRR §§ 202.21 (i) and 202.50, but, as of matter of law, created the express risk of dismissal, as stated in 22 NYCRR § 202.48 (b), where there is a failure to comply with the sixty-day deadline (Funk, 89 NY2d 364).

The record before the Court is bereft of any notice of settlement filed by the Plaintiff of any proposed judgment of divorce and supporting papers as of this Decision and Order. As such, on this motion sequence to "restore," the Plaintiff is charged with establishing good cause for his failure to submit the proposed judgment of divorce and supporting documents for the six-year-[*5]and-seven-month period between when the papers were to be submitted and when the instant application was made, pursuant to 22 NYCRR § 202.48 (b).

In support of his application to restore, the Plaintiff fails to cite 22 NYCRR § 202.48, let alone make an affirmative application for leave to serve the proposed judgment and supporting documents, however untimely. In fact, the incorrect legal standard is cited, as Counsel argues that it is "in the interest of justice" that this Court exercise its authority to manage its calendar by restoring this matter to the "active" calendar to "permit the completion of the divorce proceedings and the proper adjudication of all ancillary matters, including child support."^FN2 Contrary to Counsel's contention, all ancillary issues have been deemed resolved—a finding that is law of the case—that resulted in the prior jurist granting him a judgment of divorce, and there is nothing left to adjudicate. As for the request for permission to complete the divorce action, the Court addresses same hereinbelow.

The Plaintiff claims that, "unbeknownst to [him], [his prior attorney] failed to submit the proposed judgment divorce, along with the supporting papers, within 60 days of April XX, 2019."^FN3 The Plaintiff further maintains that when he confronted his former attorney about this failure in or around July 2024, his former attorney "tried to change the narrative from his failure to timely submit the requisite papers to allegations that [he] had failed to pay for the April XX, 2019 transcript and his legal fees."^FN4

In opposition, while the Defendant asks that the motion be denied in its entirety, neither she nor her attorney expressly opposes or addresses this prong of the Plaintiff's motion.

Notwithstanding the pendency of any proceeding in the Bronx County Family Court, this Court is perplexed by the Plaintiff's failure to settle the proposed judgment of divorce and attendant documents. Even if this Court assumes as true that the Plaintiff confronted his prior attorney in July of 2024 about the fact that the proposed judgment of divorce and attendant documents had not been settled, the underlying motion, the instant application, which does not even expressly seek the relief it ought to seek, was filed over one-and-one-half years after the alleged confrontation and after his present attorney filed a notice of appearance.

Nevertheless, the Court is starkly aware that denying the application to complete the divorce action will result in the dismissal of this action due to abandonment—forcing these parties to relitigate several aspects of their divorce action, filed well over eleven years ago. Such a result would not bring the repose to court proceedings that 22 NYCRR § 202.48 was designed to effectuate, and would otherwise waste judicial resources. This Court agrees, however, the prior attorney was charged with settling the proposed judgment of divorce and attendant documents. (see e.g. Russo v Russo, 289 AD2d 467 [2d Dept 2001]). As such, the Court finds that the Plaintiff establishes good cause, however scantly, to warrant granting him one final extension to settle the proposed judgment of divorce and supporting documents on notice to the Defendant within sixty (60) days of entry of this Decision and Order on Motion.

II. The Plaintiff's application to remove the pending Bronx County Family Court [*6]Modification Proceeding and to consolidate said proceeding with the instant post-disposition, but prejudgment matrimonial action is DENIED.

During oral argument, the Plaintiff's Counsel argued that this Court "must" remove and consolidate the pending Bronx Family Court Modification Proceeding with the instant matrimonial action, arguing, in part, that "as long as there's an ongoing Supreme Court case, the Family Court cannot maintain jurisdiction, cannot exercise jurisdiction without the Supreme Court['s] consent." Within his supporting papers, the Plaintiff cites Section 464 of the Family Court to support this contention. Ironically, this is the same argument that was touted against the Plaintiff before the Magistrate in the Bronx Family Court Modification Proceeding, which the Plaintiff herein rebuked, but now espouses. Nevertheless, determining whether the Bronx Family Court Modification Proceeding is statutorily barred from proceeding in the Family Court pursuant to Family Court Act § 464 is a red herring, as even if Bronx Family Court Modification Proceeding was improperly filed in the Family Court, such defective filing does not mean, in and of itself, that consolidation is appropriate. Instead, the required legal analysis here is pursuant to CPLR 602 (b).

CPLR 602 (b) instructs that:

"[w]here an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court. Where an action is pending in the county court, it may, upon motion, remove to itself an action pending in a city, municipal, district or justice court in the county and consolidate it or have it tried together with that in the county court."

Consolidation is favored where there exist common questions of law or fact absent a showing of prejudice to a substantial right (Chinatown Apts., Inc. v NY City Trans. Auth., 100 AD2d 824 [1st Dept 1984]; C.S.P. v D.T.M., — AD3d —, 2026 NY Slip Op 03739 [1st Dept 2026]; Giasemis v Giasemis, 139 AD3d 794 [2d Dept 2016]). However, the trial court must ensure that a joint trial, instead consolidation, is proper (Cusumano v Cusumano, 114 AD3d 633 [2d Dept 2014]; CPLR 602 [a]). Of course, a court cannot consolidate another action or proceeding if the plaintiff or petitioner in the action or proceeding that is sought to be consolidated has otherwise withdrawn or discontinued same (see e.g. Matter of Ryan v Nolan, 134 AD3d 1259, 1261-1262 [3d Dept 2015]). In that vein, ". . . a precondition for merging two or more actions is that each action should itself be viable, meaning that neither is confronted with a pending—and apparently meritorious—motion to dismiss" (HSBC Bank USA, N.A. v Francis, 214 AD3d 58, 63 [2d Dept 2023]).

Here, as noted hereinabove, this action has been restored only to the extent that the Plaintiff has been granted one final opportunity to settle the judgment roll. Said differently, the ancillary issues in this action were already resolved and no pending matters to adjudicate other than reviewing the proposed divorce packet and the ministerial act of signing the proposed judgment of divorce. As such, although this matrimonial action is otherwise "viable," there are no "pending" issues to adjudicate in this disposed, prejudgment action. Conversely, it is questionable whether the Plaintiff's petition, as otherwise pleaded in the Bronx Family Court Modification Proceeding, which is in the middle of a fact-finding hearing, is viable, as the petition seeks specific enforcement of a term within the uncertified copy of the So-Ordered Divorce Stipulation that is absent in the certified copy of the So-Ordered Divorce Stipulation. [*7]Moreover, the Plaintiff appears to be engaging in forum shopping by seeking to remove the Bronx Family Court Modification Proceeding during the middle of a hearing after certain evidentiary rulings have been made—and such conduct is frowned upon as a matter of public policy in this state (O'Connell v Corcoran, 1 NY3d 179, 185 [2003]). As such, the Plaintiff's application to remove the pending Bronx County Family Court Modification Proceeding and to consolidate said proceeding with the instant post-disposition, but prejudgment matrimonial action is denied.

III. The Plaintiff's application for an award of counsel fees is DENIED, as he not only fails to annex a statement of net worth with his moving papers, but because that branch of the motion that was otherwise granted hereinabove pertained to a court-ordered obligation that belonged to only himself.

While the Plaintiff seeks an award of counsel fees pursuant to DRL § 237,^FN5 he does not clarify under which subdivision therein he seeks relief.

A review of the moving papers reveals that the basis for counsel fees does not pertain to the Defendant's failure to obey any lawful order compelling payment of support or maintenance, or distributive award, thereby making relief pursuant to subdivision (c) of DRL § 237 inapplicable. As such the Court shall construe this application as one pursuant to either DRL § 237 (a) or (b).

In that event, the Plaintiff was required to include a statement of net worth with his moving papers (22 NYCRR § 202.16 [k] [2]). Absent good cause shown, the failure to include a statement of net worth with the moving papers allows a trial court either to draw an inference favorable to the adverse party with respect to any disputed fact or issue affected by such failure to deny the motion without prejudice to renewal upon compliance with the provisions of this section (22 NYCRR § 202.16 [k] [5; see e.g. Milchin v Milchin, 244 AD3d 420 [1st Dept 2025]).

Here, the Plaintiff fails to annex a statement of net worth with his moving papers, let alone proffers good cause for why this Court should award counsel fees absent the inclusion of such document. This Court finds that this failure and lack of good cause warrant denial of the application without prejudice with leave to renew (22 NYCRR 202.16 [k] [5] [ii]). In either event, the Plaintiff's underlying motion has been granted only to the extent of affording the Plaintiff one final opportunity to settle the proposed judgment of divorce and supporting documents—a court-ordered responsibility already borne by the Plaintiff. Thus, even if the Plaintiff had included a statement of net worth with his application, the Court does not discern a basis for an award of counsel fees, as the Plaintiff has failed to demonstrate any omission or failure by the Defendant to warrant such relief.

Conclusion

In light of the foregoing findings, the Plaintiff's Order to Show Cause, docketed as Motion Sequence Number XX, is hereby GRANTED IN PART, and it is, therefore, hereby

ORDERED AND ADJUDGED that the Plaintiff's application for an Order restoring this divorce action to the Court's calendar is GRANTED to the extent that the Plaintiff, through his present attorneys, shall settle the final judgment of divorce with supporting papers (including a Certificate of Dissolution; if applicable, a qualified medical child support order, and all [*8]documents pursuant to all appropriate statutes and court rules, including 22 NYCRR §§ 202.21 [i] and 202.50), upon proper notice to the present attorneys for the Defendant within sixty (60) days after entry of this Decision and Order on Motion; and it is further

ORDERED AND ADJUDGED that the Plaintiff's application for an Order staying the pending Bronx Family Court Modification Proceeding is hereby DENIED; and it is further

ORDERED AND ADJUDGED that the Plaintiff's application for an Order removing the pending Bronx Family Court Modification Proceeding and consolidating same with the above-entitled divorce action is hereby DENIED; and it is further

ORDERED AND ADJUDGED that the Plaintiff's application for an Order modifying the So-Ordered Divorce Stipulation and directing the New York State Child Support Unit to "reconcile the account bearing NY CASE ID XXXXX to give Plaintiff credit for any overpayment due to Plaintiff based on the So-Ordered Divorce Stipulation as modified by this Court is hereby DENIED without prejudice; and it is further

ORDERED AND ADJUDGED that the Plaintiff's application for an Order directing the Defendant to pay to the Plaintiff and/or his attorneys Five Thousand Dollars ($5,000.00) in counsel fees is hereby DENIED; and it is further

ORDERED AND ADJUDGED that any and all other relief not otherwise granted or reserved for future decision is hereby DENIED.

This constitutes the Decision and Order on Motion of this Court.

Dated: July 2, 2026

Bronx, New York

E N T E R:

HON. WANDA Y. NEGRÓN, A.J.S.C.