Cusumano v. Cusumano , 606 N.Y.S.2d 257 ( 1993 )

In a matrimonial action in which the parties were divorced by judgment dated March 10, 1988, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Delaney, J.), dated May 14, 1990, as directed that the net proceeds of the sale of certain real property located in Fort Lauderdale, Florida, be utilized to pay a $99,598.71 debt owed thereon. By decision and order dated December 21, 1992, this Court remitted the matter to the Supreme Court, Westchester County, in order that it might state the facts it deemed essential to its decision pursuant to CPLR 4213 (b) (see, Cusumano v Cusumano, 188 AD2d 580). The Supreme Court has now complied.

Ordered that the order is modified, by deleting so much of the second decretal paragraph thereof as directed that the net proceeds of the sale be utilized to pay "the debt owed to Citiplate in the amount of $99,598.71”, and substituting therefor a provision directing that the net proceeds of the sale be utilized to pay "the debt owed to Citiplate”; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On appeal, the plaintiff contends that the Supreme Court erred in directing that the proceeds of the sale of the parties’ Florida condominium be used to satisfy a $99,598.71 mortgage debt, because no evidence of the amount of the debt was submitted by the parties. We agree. In the absence of any evidence in the record of the amount of the debt, the Supreme Court should not have directed that the sum of $99,598.71 be utilized to satisfy the mortgage. Accordingly, we modify the order appealed from to delete the amount, leaving the direction that the proceeds be used to discharge the debt, in accordance with its tenor on the date of payment, if sufficient to do so. Thompson, J. P., Balletta, Rosenblatt and Eiber, JJ., concur.