Monday, March 2, 2015

DETERMINING THE EQUITABLE INTEREST IN SPOUSE'S BUSINESS

Sutaria v. Sutaria, 123 A.D.3d 909, --- N.Y.S.2d --- (Second Dept. 2014)(2014 WL 7180918)(2014 N.Y. Slip Op. 08829)(Dec. 17, 2014):

"Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in precluding his expert from testifying at trial. The defendant's expert was not disclosed to the plaintiff until the morning of the first day of trial, in violation of the court's directive as to disclosure of expert witnesses (see Lucian v. Schwartz, 55 AD3d 687, 688; Schwartzberg v. Kingsbridge Hgts. Care Ctr., 25 AD3d 463, 464).

The defendant's contention that the Supreme Court erred in its calculation of the value of his two pharmacy businesses is without merit. The determination of the value of a business is a function properly within the fact-finding power of the court (see Peritore v. Peritore, 66 AD3d 750; Sieger v. Sieger, 51 AD3d 1004; Daddino v. Daddino, 37 AD3d 518, 519). Where the determination is within the range of the testimony presented, it will be accorded deference on appeal if it rests primarily on the credibility of expert witnesses and their valuation techniques (see Peritore v. Peritore, 66 AD3d 750; Sieger v. Sieger, 51 AD3d 1004; Levine v. Levine, 37 AD3d 550, 552). Contrary to the defendant's contention, no basis exists to disturb the court's determination that the court-appointed business evaluator was credible (see Peritore v. Peritore, 66 AD3d at 752; Levine v. Levine, 37 AD3d at 552).

The Supreme Court providently exercised its discretion in awarding the plaintiff 25% of the value of each of the defendant's businesses, Ayush, LLC, and Dulari Corporation. The award of 25% of the value of the businesses properly accounts for the plaintiff's direct and indirect contributions to the businesses, including her contributions as the primary caretaker for the parties' children, which allowed the defendant to focus on the businesses (see Baron v. Baron, 71 AD3d 807, 809; Ventimiglia v. Ventimiglia, 307 A.D.2d 993, 994).

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