DIVORCE AND THE MARITAL HOME - ISSUES WHEN BUYING OUT THE EX'S INTEREST

TP v. SP, 2023 NY Slip Op 50484 - NY: Supreme Court 2023:

"The Defendant moves by Order to Show Cause dated March 7, 2023 (Motion Sequence No.: 006) seeking an Order: (A) Granting an order compelling Plaintiff, T.P, to list the former marital residence located at XXXX, Elmont, New York for sale in accordance with the terms of the parties' Stipulation of Settlement dated October 21, 2022; (B) Directing the Plaintiff to permit Defendant access to the marital residence to retrieve Defendant's personal property and belongings in accordance with the terms of the parties' Stipulation of Settlement dated October 21, 2022; (C) Directing Plaintiff to pay any and all outstanding fees to Optimum in the current sum of $691.78; (D) Granting such other and further relief as the Court may deem just and proper.

The Plaintiff moves by Notice of Cross-Motion dated April 21, 2023 (Motion Sequence No.: 007) seeking an Order: (a) Dismissing the Defendant's application and/or denying the relief requested by the Defendant's application in its entirety; and (b) Directing the Defendant to cooperate with the buy-out/refinance of the marital residence pursuant to the terms of the parties' Stipulation of Settlement; and (c) Directing the Defendant to reimburse the Plaintiff for fees incurred as a result of the delay in closing the refinance; and (d) Pursuant to DRL 237 and Section 130-1.1 of the Rules of the Chief Administrator of the Courts, awarding Plaintiff counsel fees in the sum of $10,000.00 representing fees incurred by the Plaintiff in defending against the Defendant's frivolous application, plus additional sums as may accrue during the pendency of this action for services rendered in connection with the within application; and (e) Pursuant to Section 130-1.1 of the Rules of the Chief Administrator of the Courts, directing the Defendant to pay sanctions for the filing of a frivolous application in the amount determined by this Honorable Court; and (f) Awarding counsel fees in the sum of $10,000.00 to the Plaintiff for defending against the Defendant's application; and (g) For such other and further relief which the Court may deem just and proper.

BACKGROUND

There are no unemancipated children of this marriage. The parties resolve the instant matrimonial action by way of a Stipulation of Settlement dated October 21, 2022 (hereinafter referred to as the "Stipulation").An Order Directing Submission of Findings of Fact, Conclusions of Law, and Judgment of Divorce was signed by this Court on October 21, 2022. A proposed Judgment of Divorce was submitted by the Plaintiff's counsel on February 21, 2023. A proposed Counter Judgment of Divorce was submitted by the Defendant's counsel on February 22, 2023. The Judgment and Counter Judgment are currently pending review by the Matrimonial Clerk's Office.

THE PARTIES' CONTENTIONS

Defendant's Contentions:

The Defendant contends in sum and substance that Plaintiff was to, within 120 days from the execution of the Stipulation, secure a loan to buyout his interest in and to the marital residence — located at XXXX, Elmont, New York (hereinafter referred to as the "Elmont Residence") — for $173,500.00. He argues that this sum was due to him on February 18, 2023. He argues that on February 10, 2023, his counsel sent a letter to Plaintiff's counsel, inquiring as to a closing date for the refinance. He argues that the Plaintiff's counsel simply responded that a closing date was anticipated to be February 21, 2023. He avers that the Stipulation provides that if the Plaintiff is not able to close on a new loan within the 120 day time period, that the Elmont Residence is to be placed on the market for sale. He argues that his counsel sent an email on February 23, 2023, indicating that her time to close to obtain a new loan had expired, and that he provided information as to the broker he was choosing as the listing agent for the sale. He argues that in response, he received communication from counsel that the closing on the refinance was scheduled for February 21, 2023, but there was a "problem with underwriting". He argues that he then received notification that the Plaintiff would not be able to close on the refinance until March, but there were no details as to why it would not take place until March. He argues that this deprives him of funds that he was entitled to receive from the Elmont Residence. He seeks the return of his personal property, and that the Plaintiff has prevented his access to the Elmont Residence, despite the fact that his counsel has requested access. He argues that he attempted to work this out through counsel, to no avail, as the Plaintiff wanted to impose rules for his return. He argues that the Plaintiff was to take over the carrying charges attendant to the Elmont Residence upon his vacatur from the Elmont Residence, that he vacated the Elmonst Residence on October 30, 2022, and that there is now an Optimum bill due in the amount of $691.78 for which the Plaintiff should be responsible.

Plaintiff's Contentions:

The Plaintiff avers that the Stipulation provided that she buyout the Defendant's interest in the Elmont Residence within 120 days of the execution of the Stipulation. She argues that in November of 2022, she began reaching out to lenders to begin the refinancing process. She avers that by the end of January, 2023, she was pre-approved for a refinance with Better Mortgages or NJ Lenders, and she thereupon choose NJ Lenders to refinance. She avers that the loan application was processed on February 1, that the e-consent forms were completed on February 9, that the remaining forms and authorizations were completed on February 14, that she received an email on February 14 that her loan was pre-approved, that NJ Lenders confirmed the loan was fully approved on February 27, that on March 3 the closing was scheduled for March 9, and that due to scheduling conflicts the earliest day closing could be scheduled for was March 9. She argues that her counsel advised the Defendant's counsel of the preliminary closing date and the reason for the delay. She avers that less than two weeks from when 120 days had elapsed, the refinance and closing was scheduled but the Defendant refused to sign off on the closing. She argues that between the time he filed his application and April 13, the Defendant made "demands" to move forward with the closing. She argues she complied with his demands, but he asked for more. She argues she was left without answers for weeks, there was a modification stipulation drafted, and she believed the Defendant would execute same. She argues he again — at that point — asked for more. She argues that she is now in jeopardy of losing her loan and must now pay $1,850 to keep the loan alive through May 10. She argues that the Defendant has nothing to gain by insisting on the sale. She argues that the forced sale delays receipt of his share of the equity and that he will receive less if the Elmont Residence is sold. With respect to his personal property, the Defendant previously ransacked all of his property beyond what was set forth therein. She avers that she has "always been available" for the Defendant to retrieve his remaining personalty but that she wanted to feel protected that the Defendant would only take what was in the Stipulation. She avers that the Defendant provides no proof from when the bill originated from, as all utilities were transferred out of his name when he vacated.

Defendant's Opposition & Reply:

The Defendant reiterates that the Plaintiff failed to timely refinance the current mortgage, failed to remove his name from the mortgage, and failed to pay him his share of the equitable distribution, in addition to refusing to allow him access to the Elmont Residence. He argues that the Plaintiff fails to provide a reasonable excuse for her failing to timely comply with the terms of the Stipulation. He argues that there is no proof appended to the Plaintiff's moving papers that she began submitting applications for a new loan in November of 2022 and there is no proof that she was pre-approved for a new loan by the end of January 2023. He argues that while the Plaintiff argues that she was pre-approved by the end of January, 2023, there is an email that the loan was pre-approved on February 14, 2023. He argues that the Plaintiff concedes that she was not fully approved until February 27, 2023. He argues that since she received a commitment letter on February 27, 2023, she was nowhere near scheduling a closing date, which is also contrary to her statement that the closing was scheduled for February 21, 2023. He questions how a closing could have been scheduled when there was no commitment letter. He argues that closing documents were sent to him after 5:00 p.m. on March 7, 2023, one business day prior to the closing date of March 9, 2023. He argues that no documentation is appended to the Plaintiff's moving papers to substantiate the $1,850.00 that she must pay to keep the loan viable. He denies ransacking the Elmont Residence. He argues that the Optimum bill is the result of equipment which was not returned. He argues that he paid his cable charges through November 22, 2022, and the remaining balance of $550.00 is for the remaining equipment.

DISCUSSION/ANALYSIS

SALE OF ELMONT RESIDENCE/COOPERATION WITH SALE

A matrimonial settlement is a contract subject to principles of contract interpretation, and a court should interpret the contract in accordance with its plain and ordinary meaning. Matter of Glick v. Ruland, 185 AD3d 815 (2d Dept. 2020). The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent. Slatt v. Slatt, 64 NY2d 966, 967, rearg denied 65 NY2d 785 (1985). The best evidence of what parties to a written agreement intend is what they say in their writing". Slamow v. Del Col, 79 NY2d 1016, 1018 (1992). Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. R/S Assoc. v. New York Job Dev. Auth., 98 NY2d 29, 32, rearg denied 98 NY2d 693 (2002).

A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion". Breed v. Insurance Co. of N. Am., 46 NY2d 351, 355 (1978), rearg denied 46 NY2d 940 (1979). Thus, if the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity. Teichman v. Community Hosp. of W. Suffolk, 87 NY2d 514, 520 (1996). A court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract's apparent meaning. Cohen-Davidson v. Davidson, 291 AD2d 474 (2d Dept. 2002). A court cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation. Cappello v. Cappello, 286 AD2d 360 (2d Dept. 2001).

Here, the Court notes the procedural posture of this case: post-execution of a Stipulation of Settlement, but pre-Judgment of Divorce. Since both parties seek enforcement of the terms of the Stipulation of Settlement, this Court is nonetheless permitted to aid the parties. As the Court of Appeals has held:

A settlement agreement entered into by parties to a lawsuit does not terminate the action unless there has been an express stipulation of discontinuance or actual entry of judgment in accordance with the terms of the settlement. Absent such termination, the court retains its supervisory power over the action and may lend aid to a party who had moved for enforcement of the settlement.

Teitelbaum Holdings, Ltd. v. Gold, 48 NY2d 51 (1979).

The Court has carefully reviewed Article VII of the parties' Stipulation, which provides:

7.6.1 The parties acknowledge that the premises known as 7 Marie Court, Elmont, New York 11003, hereinafter referred to as the "Marital Residence", is titled jointly in the parties' name. Currently, the parties occupy the marital residence.

7.6.2 The parties acknowledge that the marital residence was acquired during the marriage.

7.6.3 The marital residence was valued at $547,000.00 by BCS Valuations, Inc., in an appraisal dated March 12, 2021.

7.6.4 Contingent upon the buy-out to be provided for herein, the Wife shall be the exclusive owner of the House, free of any rights of the Husband. Ownership of the House shall be transferred solely to the Wife upon the completion of the buy-out and compliance with the terms provided for hereinbelow.

7.6.5 The parties agree that the Wife shall have 120 days from the execution of this Stipulation to secure a loan to buy out the Husband's interest in the marital residence and remove the Husband's name from the existing mortgage and to provide the Husband, at closing, a lump-sum payment (via bank check) of 50% of the appraised value of the marital residence ($547,000.00) less the outstanding mortgage ($200,000 appx.) for a total amount payable to the Husband $173,500.00 appx. as full and complete satisfaction of any equity claims on the marital residence. However, $25,000.00 of such funds shall be held in escrow by the Wife's attorney if the Husband has not vacated the marital residence at the time of closing and not be released until the Husband's vacatur from the marital residence and written agreement of the parties. The Wife shall be solely responsible to satisfy all expenses associated with her obtaining of the refinance loan, inclusive of all transfer taxes, mortgage taxes and recording fees.

* * *

7.6.9 In the event that the Wife is not able to close on the new loan and provide the aforementioned lump-sum payment within said 120 day period (or such extended period as the parties may agree to), then the House shall be placed on the market for sale with a Multiple Listing Broker of the parties' joint choosing. If the parties cannot agree, they shall retain the services of the brokerage closest in radius proximity to the House as the listing agency. The parties shall endeavor to agree upon the price at which the House is to be sold. If they cannot agree, the appraised value of $547,000.00, plus $25,000.00, shall be the initial price at which the House is to be listed for sale.

The Court finds important the time line from the date of the parties' Stipulation to one hundred twenty days therefrom. Those dates are not disputed. The Court notes that the parties executed the Stipulation on October 21, 2022. Therefore, the Plaintiff had 120 days, or until February 18, 2023, to comply with the express terms of Paragraphs 7.6.5 and 7.6.9 of the parties' Stipulation. Within and prior to said 120 day period, the Plaintiff was to, inter alia and in sum and substance, secure a loan to buy out the Defendant's interest and remove the Defendant's name from the existing mortgage and to provide the Defendant a lump-sum payment (via bank check) of 50% of the appraised value of the Elmont Residence in the amount of $173,500.00. The Plaintiff asserts that she has substantially performed her obligations. The Defendant disagrees. The Court therefore undertakes a contract analysis.

The essential elements for pleading a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach. Dee v. Rakower, 112 AD3d 204 (2d Dept. 2013); see also Junger v. John V. Dinan Assoc., Inc., 164 AD3d 1428 (2d Dept. 2018); see also Olden Group v. 2890 Review Equity, 209 AD3d 748 (2d Dept. 2022). Typically, a contract is not breached until the time set for performance has expired. Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, i 83 AD3d 804 (2d Dept. 2011). A breach of contract cause of action accrues at the time of the breach. Ely-Cruikshank Co v. Bank of Montreal, 81 NY2d 399 (1993).

Substantial performance of a contract connotes performance that is in compliance with the contract except for minor and relatively unimportant deviations. Jerry B. Wilson Roofing & Painting v. Jobco-E.R. Kelly Assocs., 128 AD2d 953 (3d Dept. 1987). In order to recover for substantial performance, the plaintiff must establish that its failure to perform was inadvertent or unintentional and that the defects were insubstantial. Jerry B., 128 AD2d at 953. In determining whether or not to apply the doctrine of substantial performance, the Court should consider weighing the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, and the cruelty of enforced adherence. Edgewater Constr. Co. v. 81 & 3 of Watertown, Inc., 1 AD3d 1054 (4th Dept. 2003).

The Restatement (Second) of Contracts § 241 provides:

In determining whether a failure to render or to offer performance is material, the following circumstances are significant:

(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;

(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;

(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;

(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

Injured Party's Deprivation of Benefit

The Defendant is the injured party. He has been deprived of his benefit since February 18, 2023, which is when he was not only expected to be removed from the mortgage, but he expected to receive and have in-hand the sum of $173,500.00. Approximately three (3) months later, as of the approximate date of this Decision and Order, he has still yet to receive this benefit. Clearly, the Defendant reasonably expected to be removed from the existing mortgage and to have his $173,500.00 in-hand on or before February 18, 2023. These circumstances tip in favor of the Defendant and weight in favor of compelling the sale of the Elmont Residence.

Injured Party's Compensation for the Deprived Benefit

The Defendant expected to have in-hand the sum of $173,500.00 by not later than February 18, 2023. While this Court cannot re-write the parties' contract or re-design the benefit of their bargain, this Court can, in the exercise of its broad discretion, compensate the Defendant pursuant to the applicable provisions of the CPLR for the time lost running from February 18, 2023. This Court can grant the Defendant the immediate right to file a money judgment for his expectation damages of $173,500.00 together with statutory interest thereon at the prevailing rate, along with compensating him with pre-judgment interest running from the first ascertainable date of the breach, to wit: February 18, 2023 (see infra). These circumstances tip in favor of the Plaintiff and militate against compelling the sale of the Elmont Residence.

Forfeiture of the Party Failing to Perform

The Plaintiff failed to perform. She failed to timely comply with the terms of the parties' Stipulation. However, it is clear from a fair reading of the Stipulation in toto that the intent of the parties was that the Plaintiff would acquire ownership and retain possession of the Elmont Residence. If the Elmont Residence is sold by this Court, clearly, the Plaintiff loses the benefit of her bargain, namely, retention of said residence. Pursuant to the Stipulation, if the Elmont Residence is to be sold, the parties were to, among other things, split the net proceeds of sale. Nonetheless, the Elmont Residence would no longer be the property of the Plaintiff. These circumstances tip in favor of the Plaintiff and militate against compelling the sale of the Elmont Residence.

Breaching Party's Likelihood of Curing the Default

Notwithstanding having not complied with the 120 day provision within the parties' Stipulation, the documentary evidence appended to the papers reflects that her loan application was approved (see NYSCEF Document No.: 184) as of February 27, 2023 and that the deed and transfer documents were sent to the Defendant's counsel. The Court therefore finds that there is a strong likelihood that the Plaintiff's default would have been cured. These circumstances tip in favor of the Plaintiff and militate against compelling the sale of the Elmont Residence.

Breaching Party's Good Faith and Fair Dealing

This is a difficult question for the Court based upon the papers submitted. On the one hand, it is clear to the Court that the Plaintiff failed to timely comply with the Stipulation in securing a loan, removing the Defendant's name from the mortgage and paying the Defendant the $173,500.00 due and owing to him within 120 days from execution. It is also clear to the Court, on the other hand, that the Plaintiff completed her loan application, was pre-approved for the loan before the February 18 deadline, but, by concession, was not fully approved until February 27, did not send over closing documents until March 7 and a closing was not scheduled until March 9, all of which were after February 18, the 120 day deadline agreed to. There is also no agreement between the parties presented that extended the 120 day deadline.

Implicit in all contracts is a covenant of good faith and fair dealing in the course of contract performance. Woodmere Rehabilitation v. Zafrin, 197 AD3d 1263 (2d Dept. 2021). It requires that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Dalton v. Educ. Testing Serv., 87 NY2d 384 (1995) (Levine, J., dissenting). The Court looks to the intent of the parties. How can that be ascertained? In order to determine the contracting parties' intent, a court looks to the objective meaning of contractual language, not to the parties' individual subjective understanding of it. Ashwood Capital, Inc. v. OTG Mgt., Inc., 99 AD3d 1 (1st Dept 2012). The ultimate goal in contract interpretation is realization and effectuation of the parties' intent (see Matter of Shatraw, 66 AD3d 1293 (3d Dept. 2009)0 and to give effect to the intent of the parties as reasonably manifested by the language of their written agreement (see LHR, Inc. v. T-Mobile USA, Inc., 112 AD3d 1293 (4th Dept. 2013)).

It is clear to the Court that the fruits of the contract were that the Defendant would receive money, specifically, the $173,500.00, and the Plaintiff would retain real property, specifically, the Elmont Residence. In other words, it is clear to the Court that the intent of the parties — manifested by the language of their Stipulation — was that the Defendant would be paid money and the Plaintiff would retain the residence she had resided in. The Court finds that the Plaintiff established her good faith and fair dealing in performing her contractual obligations as evidenced by the fact that her loan application was completed prior to the 120 day time limitation set forth in the Stipulation and inasmuch as there is documentary evidence that the loan was preapproved before the February 18/120 day deadline. Had the Plaintiff not completed the loan application and had she not been preapproved prior to the February 18 deadline, perhaps the Court's conclusion would be different. The Court also notes that the Plaintiff completed her loan application on February 1 which was before the inquisitory email from the Defendant's counsel on February 10 inquiring as to the refinance status. Indeed, albeit untimely, the Defendant's counsel was in receipt of closing documents on March 7, 2023, a mere seventeen (17) days after the expiration of the 120 day time limitation set forth in the Stipulation. These circumstances tip in favor of the Plaintiff and militate against compelling the sale of the Elmont Residence

This Court has held in the past that it stands as a Court of equity. F.J.O. v. M.I.O., 76 Misc 3d 1207(A) (Supreme Court Nassau County 2022); see also L.F. v. M.F., 2023 NY Misc. LEXIS 489 (Supreme Court New York County 2023). The Court finds that the Defendant bargained-for his name being removed from the mortgage and the receipt of $173,500.00 within 120 days of the execution of the Stipulation . . . something he has, to this point, lost-out on and been deprived of. The Court finds, while it did not, at this juncture and based upon the specific facts of this case, compel the immediate sale of the Elmont Residence at this time, that the Defendant should be compensated for his expectation damages for losing out on timely receiving his bargained-for equitable distribution.

The Restatement (Second) of Contracts § 347 provides:

(1) The injured party has a right to damages for any breach by a party against whom the contract is enforceable unless the claim for damages has been suspended or discharged.

(2) If the breach caused no loss or if the amount of the loss is not proved under the rules stated in this Chapter, a small sum fixed without regard to the amount of loss will be awarded as nominal damages.

Expectation damages is the general measure of damages in a breach of contract case under New York law. Emposimato v. CIFC Acquisition Corp., 89 AD3d 418 (1st Dept. 2011). The doctrine of expectation damages provides that damages should put the plaintiff in the same economic position that it would have occupied had the breaching party performed the contract. Misty Cleaning Serv. Inc. v. Independent Group Home Living Program, Inc., 66 Misc 3d 1209(A) (Supreme Court Suffolk County 2020).

It is clear to the Court that the Defendant was also entitled to the benefit of his bargain: namely, that on (or before) February 18, 2023, he would have, in hand, the sum of $173,500.00 The Court, therefore finds that he was damaged in the sum of $173,500.00. The Defendant, on this Record, has not proven to this Court that he has suffered any other monetary damages, other than him not receiving the benefit of his bargain. Accordingly, to compensate him, the Court grants and awards him his expectation damages in the amount of $173,500.00. Said sum shall be reduced to a money judgment in favor of the Defendant as against the Plaintiff. The money judgment may be filed forthwith and without further notice to the Plaintiff upon the presentation of a copy of a proposed Money Judgment together with a copy of this Decision and Order.

The Court's inquiry does not end there. How does it compensate the Defendant for the period from February 18, 2023 through today's date? The Court finds that the Defendant was entitled to the aforesaid $173,500.00 as of February 18, 2023, the day the funds were due in his hands, and therefore grants the Defendant prejudgment interest from February 18, 2023. CPLR § 5001 provides:

(a) Actions in which recoverable. Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion.

(b) Date from which computed. Interest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.

(c) Specifying date; computing interest. The date from which interest is to be computed shall be specified in the verdict, report or decision. If a jury is discharged without specifying the date, the court upon motion shall fix the date, except that where the date is certain and not in dispute, the date may be fixed by the clerk of the court upon affidavit. The amount of interest shall be computed by the clerk of the court, to the date the verdict was rendered or the report or decision was made, and included in the total sum awarded.

The general rule in matrimonial actions is that the determination of whether to award prejudgment interest is a discretionary determination with the trial court. O'Donnell v. O'Donnell, 153 AD3d 1357 (2d Dept. 2017). The Defendant has been deprived of the $173,500.00 since February 18, 2023, which is the last day of the 120 day time limitation set forth in the Stipulation. The Court finds that such date (to wit: February 18, 2023) is the earliest ascertainable date the cause of action existed (see CPLR § 5001(b)). The Court exercises its discretionary authority (see O'Donnell, supra) and grants the Defendant prejudgment interest at a rate of nine (9%) per centum per annum (see CPLR § 5004(a)). In exercising that authority, the Court has considered that the Plaintiff only completed her loan application on February 1, 2023, a mere eighteen (18) days prior to the expiration of the 120 day time period to refinance the Elmont Residence. While the Court is disinclined — at this juncture and based upon the documentary evidence before it, including the readiness of closing documents and complete approval of the refinance — to compel the immediate sale of the Elmont Residence, it cannot ignore the substantial lapse of time between the execution of the Stipulation and the completion of the loan application. The cross-moving papers are entirely devoid of any explanation as to why it took her over ninety (90) days to complete a loan application, and why her loan application was completed on the precipice of the expiration of said 120 day time limitation. Because of the facts of this case, and because of the lack of any cognizable explanation for the substantial delay, the Court elects to award the Defendant prejudgment interest. The Court therefore grants and denies the competing applications to the extent set forth in this Decision and Order (see infra).

As a final point, and in conclusion, the Court wishes to be clear and to recapitulate: it is not re-writing the parties' agreement, nor redesigning the benefit of their bargain. Rather, as a Court of equity, the Court seeks to place the parties in the position as if the contractual obligations were duly performed. Upon the Defendant being paid the $173,500.00 (plus any and all pre and post judgment interest accumulated as is more fully set forth in this Decision and Order), the money judgment will be deemed satisfied. The Defendant will be compensated accordingly for the lost benefit of his bargain by the award of pre-judgment interest herein. The Court emphasizes that if the Plaintiff does not pay the sums owed to the extent set forth herein, the Defendant is permitted to re-file his application seeking to compel the immediate sale of the Elmont Residence.

Accordingly, it is hereby:

ORDERED, that the Defendant be and is hereby awarded a money judgment in the amount of $173,500.00, and the Clerk of the County of Nassau shall enter a judgment, with statutory interest thereon at the rate of nine (9%) per centum per annum (see CPLR § 5004(a)) as is more fully set forth in this Decision and Order, in favor of the Defendant, S.P, and against the Plaintiff, T.P, without further proceedings; and it is further

ORDERED, that statutory interest at the rate of nine (9%) per centum per annum (see CPLR § 5004(a)) on the aforesaid money judgment shall be computed from February 18, 2023 through the date of this Decision and Order, and continuing to accrue until such time that the aforesaid money judgment is satisfied in full; and it is further

ORDERED, that Branch (A) of the Defendant's Order to Show Cause dated March 7, 2023 be and is hereby DENIED WITHOUT PREJUDICE and with leave to renew sixty (60) days after the date of this Decision and Order; and it is further

ORDERED, that Branch (b) of the Plaintiff's Notice of Cross-Motion be and is hereby GRANTED SOLELY TO THE EXTENT that the Defendant shall forthwith execute any and all documents necessary to effectuate the buy-out/refinance of the existing mortgage on and associated with the Elmont Residence.

PERSONAL PROPERTY

With respect to personal property, the parties stipulation provides:

7.6.7 The Husband will vacate the premises remove all his personal belongings within fifteen (15) days of receiving the aforementioned sum or sooner. In the event the Husband does not vacate or remove his belongings within the fifteen (15) days, then he shall pay the Wife the sum of $500.00 per day until same. Such payment shall be made to the Wife from the funds held in escrow.

7.6.8 In the event the Husband moves out sooner than required to under this Stipulation he shall return his keys to the Wife and remove his belongings. He may return to the marital residence on an agreed upon date and time up to four (4) hours, confirmed in writing, to remove any remaining belongings after his vacatur, listed in Schedule "A".

There is no dispute that the Defendant vacated the Elmont Residence on October 30, 2022, well before receiving the $173,500.00 due and owing to him. There is no dispute that the Defendant's keys were returned to the Plaintiff in conformity with Paragraph 7.6.8 of the Stipulation. The Court is unsure, on this Record, whether or not the Defendant ever returned to the Elmont Residence post-execution of the Stipulation to retrieve the property set forth on Schedule "A" of the Stipulation. However, and in any event, the Plaintiff concedes that ". . . I have always been available for the Defendant to retrieve his remaining personal property . . ." Inasmuch as the parties' Stipulation provides that the Defendant may return to the Elmont Residence to retrieve his personalty on Schedule "A" of the Stipulation for a period of four (4) hours on an agreed-upon date, it is hereby:

ORDERED, that Branch (B) of the Defendant's Order to Show Cause dated March 7, 2023 be and is hereby GRANTED TO THE EXTENT that the parties are directed to, as expeditiously as possible after the date of this Decision and Order, to communicate in writing and agree-upon a date and time up to four (4) hours to permit the Defendant to return tot he Elmont Residence to retrieve his personal property listed on Schedule "A" of the Stipulation, all in conformity with the terms, conditions and provisions of the parties' Stipulation; and it is further

ORDERED, that if the parties cannot agree on a specific date and time, in conformity with the Stipulation, that the Defendant may return to the Elmont Residence to remove his personalty listed on Schedule "A" of the Stipulation, then, in that event, the parties are directed to contact the Court and the Court will select a date and time-frame, in conformity with the Stipulation, that the Defendant can retrieve his personalty.

OPTIMUM BILL

With respect to the Elmont Residence bills, the parties' Stipulation provides:

7.6.6 The Husband shall continue to pay the mortgage and remaining carrying on the marital residence until such time that he vacates the marital residence. Upon the completion of the buy-out and the Husband's vacatur from the marital residence, the parties shall cooperate in transferring the utilities for the residence from the Husband's name to the Wife's name within seven (7) days of same. The Wife shall take over the payment of all carrying costs for the marital residence upon the Husband's vacatur.

Since the Defendant vacated the Elmont Residence on October 30, 2022, the Plaintiff was obligated to take over payment of all carrying costs on November 1, 2022. The document appended to the Defendant's moving papers as Exhibit "P" (see NYSCEF Document No.: 158) does not reflect when the optimum services were incurred through. Therefore, on this Record, the Court cannot ascertain who would be responsible for the delinquent charges, costs and/or fees related to Optimum. Accordingly, it is hereby:

ORDERED, that Branch (C) of the Defendant's Order to Show Cause dated March 7, 2023 be and is hereby DENIED WITHOUT PREJUDICE and with leave to renew upon the submission of proper papers with the appropriate substantiation.

REFINANCE FEES

The Court finds no basis either in law or under the ambit of the parties' Stipulation to direct the Defendant to reimburse the Plaintiff for fees incurred in connection with her refinancing. The parties' Stipulation does not provide for reimbursement of same, and this Court cannot re-write the parties' contract. A court cannot rewrite the terms of an agreement under the guise of interpretation. Maxine Co., Inc. V. Brinks Global Servs. USA, Inc., 94 AD3d 53 (1st Dept. 2012). See also Chintpurni Devi, Inc. V. UES de LLC, 2010 NY Misc. LEXIS 2214 (Supreme Court New York County 2010) (stating that the court cannot rewrite the parties' contract); see also Niles v. Nature's Way Pest Control, 2019 NYLJ LEXIS 4243 (City Court Warren County 2019) (writing that courts cannot extricate parties from poor bargains). Additionally, by granting the relief sought by the Plaintiff, this Court would, in effect, be modifying contractual provisions of bargained-for equitable distribution; also something this Court is powerless to perform. See McAuliffe v. McAuliffe, 70 AD3d 1129 (3d Dept. 2010) (wiring that ". . . [w]hile the law permits modification of child support and maintenance awards (see Domestic Relations Law § 236[B][9][b]), there is no comparable provision allowing modification of equitable distribution awards . . ."); see also V.F. v. L.F., 2022 NYLJ LEXIS 139 (Supreme Court Nassau County 2022). Accordingly, it is hereby:

ORDERED, that Branch (c) of the Plaintiff's Notice of Cross-Motion dated April 21, 2023 be and is hereby DENIED.

COUNSEL FEES, SANCTIONS & COSTS

With respect to the imposition of monetary sanctions, 22 NYCRR § 130-1.1 provides as follows:

(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under article 3, 7 or 8 of the Family Court Act.

* * *

(c) For purposes of this Part, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

With respect to the issue of counsel fees, the decision to award [an] attorney's fee lies, in the first instance, in the discretion of the trial court. In exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions. See generally Crook v. Crook, 85 AD3d 958 (2d Dept. 2011).

Here, it is not disputed that the Plaintiff failed to secure a loan, remove the Defendant's name from the mortgage and pay to the Defendant the $173,500 due and owing to him within the agreed-upon one-hundred twenty day period in the Stipulation. The Court finds absolutely no basis in law or in fact to reward the Plaintiff with an award of counsel fees when she is in default under her agreed-upon contractual obligations. An award of counsel fees and/or sanctions in this instance would, in effect, countenance noncompliance. The Court declines to espouse that position.^[1]

ORDERED, that Branches (d), (e) and (f) of the Plaintiff's Notice of Cross-Motion dated April 21, 2023 be and are hereby DENIED.

Any other relief requested not specifically addressed herein is hereby DENIED.

This constitutes the DECISION AND ORDER of this Court.

[1] The Court also notes that the Plaintiff moved for the imposition of monetary sanctions against the Defendant when she herself was in default under the terms of the Stipulation which she herself executed. While the Court is not making a finding that her application for counsel fees and/or sanctions is frivolous conduct, the Court reminds the Plaintiff of the language of 22 NYCRR § 130-1.1(c)."