Summary
In Braunstein v Braunstein (72 A.D.2d 682) that court reversed an order of Supreme Court, New York County, which had denied an application to transfer a case very similar to this from New York City Civil Court to the Supreme Court.
Summary of this case from Stefanucci v. StefanucciOpinion
November 1, 1979
Order of the Supreme Court, New York County, entered on May 25, 1979, denying appellant's motion to transfer this action from the Civil Court to the Supreme Court, unanimously reversed, on the law, without costs or disbursements, and appellant's motion is granted. This is an action to recover $2,100 for breach of a separation agreement. In two affirmative defenses interposed by appellant in his answer he alleges that because of a drastic change in his physical and financial circumstances he can no longer comply with the terms of the agreement, and that he is the subject of unconstitutional discrimination, citing Orr v Orr ( 440 U.S. 268). It appears undisputed that appellant suffered a stroke, is now an invalid and has encountered financial hardship. Although the Civil Court may entertain equitable defenses (CCA, § 905), appellant's motion is to modify the separation agreement so as to vitiate his financial obligations thereunder. This is a matter over which the Supreme Court, and not the Civil Court, has jurisdiction (see Barrer v Barrer, 51 A.D.2d 716; Morse v Morse, 45 A.D.2d 370; McMains v McMains, 15 N.Y.2d 283, 288). In view of the disposition herein, it is unnecessary at this time to pass on appellant's claim of discrimination.
Concur — Kupferman, J.P., Birns, Sullivan, Lane and Ross, JJ.