Enker v. Enker , 687 N.Y.S.2d 903 ( 1999 )

—In an action for a divorce and ancillary relief, the plaintiff wife appeals from (1) an order of the Supreme Court, Westchester County (Barone, J.), entered May 21, 1997, which denied her motion, inter alia, to stay enforcement of a prior order of the same court dated March 7, 1997, which, among other things, granted the motion of the defendant husband to dismiss her complaint for lack of prosecution and for leave to enter judgment on his counterclaim for a divorce upon the plaintiffs default in serving a reply, (2) an order of the same court, entered May 22, 1997, which, inter alia, denied her motion to vacate the note of issue, (3) an order of the same court, entered June 24, 1997, which, inter alia, denied her motion for additional discovery, and the plaintiff wife purportedly appeals from an order of the same court, entered May 21, 1997, which, inter alia, granted the motion by her counsel to be relieved upon her default in opposing the motion.

Ordered that the purported appeal from the order entered May 21, 1997, is dismissed, without costs or disbursements, as the appeal from that order was previously dismissed by decision and order on motion of this Court dated August 13, 1997; and it is further,

Ordered that the remaining orders are affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.

Under the circumstances of this case, the court did not err in bifurcating the issue of whether the defendant husband was entitled to a judgment of divorce based on his counterclaim of abandonment and the issues of equitable distribution and maintenance (cf., Campbell v Campbell, 171 AD2d 720).

We have examined the plaintiff wife’s remaining contentions and find them to be without merit, except that this matter must be remitted to the Supreme Court, Westchester County, to decide the issues of equitable distribution and maintenance. Mangano, P. J., H. Miller, Feuerstein, Schmidt and Smith, JJ., concur.