Gajewski v. Gajewski

—Order unanimously reversed, without costs, and matter remitted to Erie Supreme Court for further proceedings in accordance with the following memorandum: On this appeal defendant contends that sections 236 and 237 of the Domestic Relations Law should be declared unconstitutional, and that the order of February 22, 1979 providing for payment of alimony and counsel fees should be vacated. However, before considering the question presented by defendant, we have two preliminary questions to determine. The first is whether defendant’s application was timely and the second is whether the application to vacate or reargue the February 22, 1979 order was properly passed on by a Judge other than one who granted it. Defendant’s application, although denominated as a motion for an order "vacating, annulling, and/or resettling and/or rearguing” the order directing payment of temporary alimony and counsel fees, was a motion for reargument since no new or additional fact was presented (Roberts v Connelly, 35 AD2d 813; Soloman v Westchester Funeral Home, 265 App Div 867). An application such as defendant’s cannot be made after the time for appeal has expired (Matter of Huie [Furman], 20 NY2d 568; Deeves v Fabric Fire Hose Co., 19 AD2d 735, affd 14 NY2d 633). However, since the order on which defendant sought reargument was dated February 22, 1979, and the order to show cause was served March 24, 1979, defendant’s application was timely (CPLR 2211). Defendant’s application, however, should have been heard by Justice Norman J. Wolf, whose order was challenged, and, upon being presented to another Judge, should have been transferred by that Judge to him under CPLR 2221 (see Riggle v Buffalo Gen. Hosp., 52 AD2d 751; Graham v Board of Supervisors of Erie County, 25 AD2d 250, 252, app dsmd 17 NY2d 866; George W. Collins, Inc. v Olsker-McLain Ind., 22 AD2d 485, 488-489). (Appeal from order of Erie Supreme Court—vacate order.) Present—Simons, J. P., Hancock, Jr., Callahan, Doerr and Moule, JJ.