McCaffrey v. McCaffrey

The plaintiffs argument that the court failed to adequately advise her of her right to counsel, and that she did not knowingly and intelligently waive her right to counsel in this action, is without merit since she had no right to counsel in the action (see Matter of Smiley, 36 NY2d 433 [1975]; Merkle v Merkle, 186 AD2d 67, 68 [1992]).

The plaintiff alleged that the defendant has two pensions and contends that the trial court erred in awarding her a share of only one of the two pensions. We disagree. “In a nonjury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court’s sound discretion” (Wasserman v Wasserman, 66 AD3d 880, 882 [2009]). Here, the defendant testified that he had one pension. The plaintiff claimed, without any documentary proof, that the defendant had two pensions. The plaintiffs statement was insufficient to prove that the defendant had more than one pension, and the court was not required to accept her statement as conclusive proof that the defendant had more than one pension.

The plaintiffs remaining contention is without merit. Covello, J.P., Angiolillo, Lott and Roman, JJ., concur.