Hadersbeck v. Hadersbeck , 413 N.Y.S.2d 890 ( 1979 )

— Appeal from an order of the Supreme Court at Special Term, entered June 6,1978 in Albany County, which directed plaintiff to enter and serve a previously granted judgment of divorce upon the defendant. The plaintiff contends that there has been a denial of her right to due process because the court did not give her adequate notice of a fact-finding hearing. The plaintiff has not raised any question as to the propriety of the procedure involved herein. The record establishes that as to the factual issue which the court undertook to determine, and in its decision regarding the defendant’s compliance with a stipulation, there was inadequate notice. The plaintiff has not shown that she is in any way directly aggrieved by the order which requires her to enter and serve the judgment of divorce and also directs the defendant to deliver a deed and a specific sum of money. However, the failure of adequate notice requires that the order be modified so as to not prejudice the plaintiff in any other respect or future proceedings. Order modified, on the law and the facts, by adding a further decretal paragraph: "Ordered, that as to any matters other than the delivery of the deed and sum of money specified in this order, this order is without prejudice to any right of the plaintiff to seek enforcement of any and all separation agreements and/or stipulations between the parties in regard to said divorce”, and, as so modified, affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.