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Smulczeski v. Smulczeski – Case Brief Summary (New York)

In Smulczeski v. Smulczeski (40 AD3d 742, 833 NYS2d 900 [2nd Dept 2007]), both parties consented to their respective attorneys being granted a security interest and to the filing of a mortgage against their respective interests in the martial property.

Plaintiff sought approval of a $ 111,030.76 mortgage against her interest in the marital residence; the defendant separately sought leave for his attorney to file a mortgage in the amount of $ 99,585.43 against his interest in the marital residence.

The trial court denied the applications.

On appeal, the Second Department held that "under the particular facts of this case, including that the relief in question has been requested by the parties themselves, the motion and cross motion should have been granted." (40 AD3d 742, 833 NYS2d 900, at 901 [2007].)