        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

880
CA 12-01238
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


MELISSA MANISCALCO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PHILIP MANISCALCO, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


KUSTELL LAW GROUP, LLP, BUFFALO (CARL B. KUSTELL OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SPADAFORA & VERRASTRO, LLP, BUFFALO (KELLY A. FERON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Frederick J. Marshall, J.), entered June 28, 2012 in a divorce
action. The judgment, inter alia, equitably distributed the marital
assets of the parties.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the duration of
maintenance to four years from April 3, 2012 and deleting from the
third ordering paragraph of the order granted June 25, 2012 that is
incorporated therein the language “any property, including but not
limited to cash accounts, bank accounts, stocks, mutual funds” and
“M&T bank accounts” and as modified the judgment is affirmed without
costs.

     Memorandum: In appeal No. 1, defendant appeals from an order
entered prior to the judgment of divorce and, in appeal No. 2,
defendant appeals from the judgment of divorce. We note at the outset
that appeal No. 1 must be dismissed inasmuch as the order in that
appeal is subsumed in the final judgment of divorce (see Rooney v
Rooney [appeal No. 3], 92 AD3d 1294, 1295, lv denied 19 NY3d 810; see
also Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988, 988). We
affirm the judgment in appeal No. 2 in all but two respects. First,
we conclude that the maintenance award is excessive. Based on the
statutory factors (see Domestic Relations Law § 236 [B] [6] [a]; see
also Hartog v Hartog, 85 NY2d 36, 51), and under the circumstances of
this case, we modify the judgment by reducing the duration of
maintenance to four years from April 3, 2012, i.e., the date of the
Matrimonial Referee’s decision (see generally Smith v Smith, 79 AD3d
1643, 1644; Burroughs v Burroughs, 269 AD2d 765, 765). Second, we
conclude that Supreme Court abused its discretion in sequestering
defendant’s cash, bank accounts, stocks and mutual funds (cf.
                                 -2-                          880
                                                        CA 12-01238

Brinckerhoff v Brinckerhoff, 53 AD3d 592, 593; Adler v Adler, 203 AD2d
81, 81). We thus further modify the judgment accordingly.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
