Baecher v. Baecher , 604 N.Y.S.2d 787 ( 1993 )

—In an action for a divorce and ancillary relief in which the parties were divorced by judgment dated September 1, 1976, the defendant former husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Ruskin, J.), dated September 17, 1991, as denied his motion to vacate an order of the same court dated January 11, 1991, which granted a motion by Doris L. Sassower, the plaintiff former wife’s attorney in the matrimonial action, to amend an outstanding judgment for attorneys’ fees against him to include interest and taxable costs, and Doris L. Sassower, the nonparty respondent-appellant, cross-appeals from so much of the same order as denied her cross motion for the imposition of sanctions against the defendant.

Ordered that the order is affirmed, with costs to the non-party respondent-appellant.

Since the defendant failed to request that the court hold an evidentiary hearing on his motion to vacate, his claim on appeal that such a hearing should have been held is unpreserved for appellate review (see, Matter of Aetna Cas. & Sur. Co. v Scirica, 170 AD2d 448; Bile v Bile, 95 AD2d 719; Brent-Grand v Megavolt Corp., 97 AD2d 783). In any event, we find that no evidentiary hearing was warranted, since the order dated January 11, 1991, which the defendant moved to vacate, merely updated and amended a prior 1982 judgment entered against him for attorneys’ fees to include interest and taxable costs. The defendant’s contention that Doris Sassower is not entitled to interest on the 1982 judgment is meritless (see, CPLR 5003).

Although the defendant’s claims before the Supreme Court were without merit, that court did not err in declining to impose sanctions under the circumstances of this case. Thompson, J. P., Sullivan, Ritter and Joy, JJ., concur.