         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
