GONZALEZ v. GONZALEZ

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,

ORDERED that the appeal from the judgment is dismissed, as the judgment was superseded by the amended judgment; and it is further,

ORDERED that the amended judgment is reversed insofar as appealed from, on the law and the facts, by (1) deleting the provision thereof directing that the proceeds of the sale of the marital residence be divided equally between the parties, and substituting therefor a provision directing that, upon the sale of the marital residence, the defendant receive $54,000 before the remaining proceeds are divided evenly between the parties, and (2) deleting the provision thereof directing the defendant to pay the plaintiff the sum of $2,000 taken from the parties joint account; and it is further,

ORDERED that the appellant is awarded one bill of costs.

The marital residence was purchased after the parties' marriage and was therefore subject to equitable distribution (see, Domestic Relations Law § 236[B][1][c]). The record indicates that the appellant contributed $54,000 in separate property to the purchase of the residence. The Supreme Court thus erred in failing to give her a credit for that amount prior to the equitable distribution of the asset (see, Robertson v. Robertson, 186 A.D.2d 124, 125; Zago v. Zago, 177 A.D.2d 691, 692; McAlpine v. McAlpine, 176 A.D.2d 285, 287).

The appellant demonstrated that she used the funds she withdrew from the parties' joint account to pay legitimate expenses, which does not constitute a waste or dissipation of marital assets (see, Harbour v. Harbour, 227 A.D.2d 882, 883-884). Accordingly, the respondent is not entitled to a credit with respect thereto.

FLORIO, J.P., SMITH, McGINITY and CRANE, JJ., concur.