SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1314 

CA 11-01907 

PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ. 

 

OLGA KNOPE, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

GERARD S. KNOPE, DEFENDANT-APPELLANT.

 

THE ODORISI LAW FIRM, EAST ROCHESTER (TERRENCE C. BROWN-STEINER OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

ALEXANDER KOROTKIN, ROCHESTER, FOR PLAINTIFF-RESPONDENT.

Appeal from a judgment of the Supreme Court, Monroe County

(Richard A. Dollinger, A.J.), entered March 17, 2011. The judgment,

inter alia, awarded maintenance to plaintiff. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the facts and the law by providing that

maintenance shall terminate six years from the date on which the

action was commenced and as modified the judgment is affirmed without

costs. 

Memorandum: Defendant husband appeals from a judgment of divorce

that, inter alia, incorporated the decision and order of the

Matrimonial Referee (Referee) appointed to hear and determine the

issues concerning the grounds for the divorce and spousal maintenance. 

Defendant contends that Supreme Court erred in awarding nondurational

maintenance to plaintiff wife. We agree. 

Although “[a]s a general rule, the amount and duration of

maintenance are matters committed to the sound discretion of the trial

court” (Boughton v Boughton, 239 AD2d 935, 935), “the authority of

this Court in determining issues of maintenance is as broad as that of

the trial court” (Reed v Reed, 55 AD3d 1249, 1251). Here, we conclude

that the record does not support an award of nondurational maintenance

to plaintiff. Specifically, the record does not support the Referee’s

finding that defendant signed an Immigration and Nationalization Form

I-864 (I-864 affidavit) providing that “he would be completely liable

for the plaintiff’s support once she had obtained a visa which allowed

her to enter the United States.” Although at the hearing before the

Referee defendant admitted signing an affidavit of support in

connection with plaintiff’s visa application, he explicitly denied

that it was an I-864 affidavit, as suggested by plaintiff. Moreover,

plaintiff never produced a signed affidavit setting forth the nature

of defendant’s obligation, and thus we conclude that the record does
-2- 1314 

CA 11-01907 

not support the Referee’s finding that defendant signed an I-864

affidavit. 

Additionally, the record does not support the Referee’s finding

that plaintiff was “unable to work to support herself financially,”

now or at any point in the future. At the hearing, plaintiff

testified that she suffered from certain medical conditions that

prevented her from being able to work or to seek job training in the

United States, including dizziness, depression, stress, constant

tinnitus, and a complete loss of hearing in one ear. Although a

person seeking maintenance may submit “general testimony” regarding a

medical condition where the effect of that condition on the person’s

“ability to work is readily apparent without the necessity of expert

testimony” (Battinelli v Battinelli, 174 AD2d 503, 504), that is not

the case here. Thus, plaintiff was required to submit medical records

or expert testimony, which she failed to do. Instead, plaintiff

offered a letter from the Social Security Administration that

referenced another letter allegedly declaring that plaintiff would

have been eligible for disability benefits if she was a United States

citizen. “[A] decision of the Social Security Administration [may

serve] as some evidence” of a disability, but it is not prima facie

evidence thereof (Matter of Frenke v Frenke, 267 AD2d 238, 238). 

Here, there is no decision in the record, and the letter submitted by

plaintiff only references a decision. That letter did not indicate

the nature, extent or permanence of plaintiff’s disability, or the

basis for the alleged determination by the Social Security

Administration that plaintiff was disabled. Further, the Referee’s

finding that plaintiff’s inability to speak English prevented her from

seeking employment is belied by plaintiff’s testimony, much of which

was in English despite the instructions of the Referee that she

testify in Russian and use an interpreter. Thus, based on the

statutory factors, including the short duration of the marriage and

plaintiff’s age, education and job skills, we conclude that plaintiff

is entitled to maintenance for a period of six years (see Domestic

Relations Law § 236 [B] [6] [a]). We therefore modify the judgment

accordingly. 

We have reviewed defendant’s remaining contentions and conclude

that they are without merit. 

Entered: February 8, 2013 Frances E. Cafarell

Clerk of the Court