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