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"WILSON, Chief Judge.
In this case, a couple used marital funds to augment the husband's Foreign Service pension so that it included credit for his pre-marriage military service. The issue is whether the portion of the pension related to the pre-marriage military service is separate or marital
property. We hold that the portion of the Foreign Service pension related to credit for that service is entirely marital property because marital funds were used to transform the credits into pension rights. We therefore reverse and remit to Supreme Court for further proceedings.
John Szypula joined the Navy in 1987, when he was 22. He and Meredith Szypula were married nine years later. Two years later, in 1998, Mr. Szypula left the Navy. In general, members of the armed services become entitled to retirement pay only after they complete twenty years of service. When Mr. Szypula left the Navy, he was not entitled to military retirement benefits.
From 1998 to 2012, Mr. Szypula worked in the private sector. In 2012, he joined the Foreign Service and enrolled in the Foreign Service Pension System (FSPS). Veterans who join the Foreign Service—like Mr. Szypula—may add their years of military service to their FSPS pensions by making additional contributions for the years they served in the military. Mr. and Ms. Szypula took advantage of this benefit. From 2012 to 2018, a portion of Mr. Szypula's earnings was withheld to enhance his Foreign Service pension by "buying back" his eleven years of Navy service, at a total cost of $9,158.00[1] . As a result of those payments and his eleven years of Navy service, Mr. Szypula's FSPS pension will vest sooner and be worth more.
In 2019, the Szypulas filed for divorce. The parties settled some issues but could not resolve whether the portion of the FSPS pension attributable to Mr. Szypula's nine years of pre-marriage Navy service was separate or marital property[2] .
Supreme Court held that the value of the FSPS pension related to Mr. Szypula's nine years of premarital Navy service was marital property subject to equitable distribution because the couple "used marital funds to buy back" the Navy credits during the course of their marriage. The Appellate Division reversed, holding that the Navy pension credits were Mr. Szypula's separate property because they were the product of his "sole labors" and were "not due in any way to [Ms. Szypula's] indirect contributions" (211 AD3d 156, 159 [3d Dept 2022]). The Appellate Division held, however, that the marital funds used to purchase the credits were subject to equitable distribution and remitted to Supreme Court to make the appropriate calculations (id.). On remittal, Supreme Court adjusted the award accordingly. Ms. Szypula now appeals.
Under Domestic Relations Law § 236, marital property includes "all property acquired by either or both spouses during the marriage" except separate property (id. § 236[B][1][c]). As relevant here, separate property includes "property acquired before marriage . . ." (id. § 236[B][1][d][1]) and "property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (id. § 236[B][1][d][3]).
Marital property "should be `construed broadly,'" and separate property "should be construed `narrowly'" (Fields v. Fields, 15 NY3d 158, 162-163 [2010], quoting Price v. Price, 69 NY2d 8, 15 [1986]). The Domestic Relations Law "creates a statutory presumption that `all property, unless clearly separate, is deemed marital property' and the burden rests with the titled spouse to rebut that presumption" (id. at 163, quoting DeJesus v. DeJesus, 90 NY2d 643, 652 [1997]). That presumption reflects the legislature's "unmistakable intent to provide each spouse with a fair share of things of value that each helped to create and expects to enjoy at a future date" (DeLuca v. DeLuca, 97 NY2d 139, 144 [2001], citing DeJesus, 90 NY2d 643).
In Majauskas v. Majauskas, we held that vested pension rights "are marital property to the extent that they were acquired between the date of the marriage and the commencement of a matrimonial action" (61 NY2d 481, 485-486 [1984]). We reasoned that a pension right is marital property because it is received "in lieu of higher compensation which would otherwise have enhanced either marital assets or the marital standard of living" (id. at 491-492), in other words, that a pension "is a form of deferred compensation" (Olivo v. Olivo, 82 NY2d 202, 207 [1993], citing Majauskas, 61 NY2d at 491-492). In the years since Majauskas, we have consistently held that pension rights attributable to work during marriage are marital property (id. at 210; Burns v. Burns, 84 NY2d 369, 376 [1994]; DeLuca, 97 NY2d at 145).
The pension rights at issue in this case differ from the benefits addressed in our prior caselaw. As we recognized in Majauskas, an employee's pension rights generally accrue incrementally over time (61 NY2d at 490). The accrual of those rights is tied to the employee's service but may also require a financial contribution from the employee. Usually, where that is the case, the employee works and pays into the plan at the same time.
Here, however, the parties made a financial contribution during the marriage to transform premarital service into pension rights. When Mr. Szypula left the Navy, the nine years of pension credits he accrued before marriage were his separate property, but they did not entitle him to any pension benefits. He had, instead, an opportunity to make a payment to acquire up to eleven years of pension rights, provided that he later took a job whose pension plan allowed for the credits to be used to augment its value.[3]
Mr. and Ms. Szypula used marital funds to convert those eleven years of Navy service, including the nine years he worked prior to marriage, into additional value to Mr. Szypula's Foreign Service pension. The pension rights at issue in this case are therefore the product of both his pre-marriage service and the Szypulas' contribution of marital assets.
Separate property that is commingled with marital property presumptively becomes marital property (see Fields, 15 NY3d at 167; see also Weiss v. Nelson, 196 AD3d 722, 725 [2d Dept 2021] ["Separate property that is commingled with marital property loses its separate character, and here, the plaintiff failed to overcome the presumption that her commingled separate property was converted to marital property"]; Bailey v. Bailey, 48 AD3d 1123, 1124 [4th Dept 2008] [holding that the defendant failed "to rebut the presumption that (commingled funds) were marital property"]; Judson v. Judson, 255 AD2d 656, 657 [3d Dept 1998] ["(O)nce separate property is commingled with marital funds it becomes marital property"]; Pullman v. Pullman, 176 AD2d 113, 114 [1st Dept 1991] ["[T]here is a presumption that assets commingled with other property acquired during the course of the marriage are marital property"]).
Although Mr. Szypula's pre-marriage military service may have had some appreciable though contingent value as separate property, by combining it with marital funds the Szypulas transformed the pension credits from separate property into marital property. Mr. Szypula acquired the eleven years of pension rights only by entering qualifying federal employment and paying to incorporate his Navy pension credits into his new pension. Those credits are thus distinct from unvested pension credits that vest so long as an employee continues to work for the same employer (cf. Burns, 84 NY2d at 377). The use of marital funds to "buy back" Mr. Szypula's Naval service created the pension entitlement he has today, at least in part. The pension rights at issue here are therefore marital property.
Our decision recognizes that marriage is an economic partnership in which each spouse is entitled to share in "things of value arising out of the marital relationship" (O'Brien v. O'Brien, 66 NY2d 576, 583 [1985]). Had the Szypulas chosen to use their marital funds to invest in a home or a financial investment rather than to purchase pension rights, Ms. Szypula would be entitled to share in the asset, not just to recover half the purchase price. That Mr. and Ms. Szypula were entitled to invest in Mr. Szypula's pension only because of his prior military service does not change the outcome: the investment was an investment of marital property, and the resulting asset is marital.
Although courts may award a spouse credit for the value of separate property used to create a marital asset, the entirety of the asset is deemed marital (Fields, 15 NY3d at 166). In situations where a marital asset was acquired in part with separate property funds, "courts have usually given the spouse who made the separate property contribution a credit for such payment before determining how to equitably distribute the remaining value of the asset" (id. at 168; see also Traut v. Traut, 181 AD2d 671, 671 [2d Dept 1992]; Lolli-Ghetti v. Lolli-Ghetti, 165 AD2d 426, 432 [1st Dept 1991]). The burden is on the spouse claiming recapture of a separate property contribution to prove that contribution's value (see Kaufman v. Kaufman, 189 AD3d 31, 64 [2d Dept 2020]). The Foreign Service pension rights attributable to Mr. Szypula's nine years of premarital service are marital property in their entirety. Here, the record is not sufficient to determine the value of Mr. Szypula's inchoate Navy pension credits at the time he contributed them to create a marital asset. On remittal, Mr. Szypula may make a claim for the value of that separate property.
It also bears note that marital property need not be distributed 50/50 (see Fields, 15 NY3d at 170; see also Valitutto v. Valitutto, 137 AD3d 1526, 1528 [3d Dept 2016] [affirming a 70/30 distribution of a pension]; Auriemmo v. Auriemmo, 87 AD3d 1090, 1091 [2d Dept 2011] [affirming a 55/45 distribution of a pension]). In making an equitable distribution of marital property, the court must consider a wide range of factors (Domestic Relations Law § 236[B][5][d]). As we explained in DeLuca, "under the broad interpretation given marital property, formalized concepts such as `vesting' and `maturity' are not determinative," but "they do affect valuation and distribution" (97 NY2d at 144, 146).
It is the responsibility of the trial court to equitably distribute marital property in the first instance (Majauskas, 61 NY2d at 493). That fact intensive determination requires a detailed and wide-ranging understanding of the marriage and the situation of each individual spouse. Our decision, in contrast, is limited to addressing the legal question of whether the pension rights at issue here are marital property and therefore subject to equitable distribution on remittal, based on "the circumstances of the case and of the respective parties" (Domestic Relations Law § 236[B][5][c]).
The pension credits at issue here became marital property when Mr. and Ms. Szypula used marital funds to transform them into pension rights, commingling separate property with marital property. Accordingly, the amended judgment appealed from and Appellate Division order brought up for review should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.
Amended judgment appealed from and Appellate Division order brought up for review reversed, with costs, and case remitted to Supreme Court, Tompkins County, for further proceedings in accordance with the opinion herein. Opinion by Chief Judge Wilson. Judges Rivera, Garcia, Singas, Cannataro, Troutman and Halligan concur.
[1] Mr. Szypula does not dispute that the portion of the pension attributable to his Navy service during the marriage (approximately two and a half years) is marital property. Supreme Court calculated that the total of the payments to "buy back" Mr. Szypula's premarital Navy service (approximately nine years) was $7049.46.
[2] The parties have not raised any issue relating to valuation of the portion of Mr. Szypula's pension based on his Foreign Service employment that postdated the commencement of divorce proceedings, and we express no opinion thereon.
[3] Mr. Szypula might also have become entitled to a Navy pension based on his service had he returned to the Navy, but he did not do so."
GELINAS LLC v. Hayes, 2024 NY Slip Op 24273 - Bronx Supreme Court 2024:
"In accordance with CPLR 2219(a), the decision herein is made upon consideration of all of the papers filed by the parties in NYSCEF in connection with the motion of defendant JACQUELINE HAYES [Mot. Seq. 4], brought by Order to Show Cause, seeking an order pursuant to RPAPL § 993: 1) staying the partition sale of a property[1] in the Bronx located at 1453 Teller Avenue ("the Residential Property"); enjoining plaintiff GELINAS, LLC. ("Gelinas") from selling, transferring or encumbering the Residential Property; 2) vacating plaintiff's partial summary judgment of partition and sale order; 3) determining the value of the Residential Property under the Heirs Act; 4) permitting Hayes as a co-tenant to exercise co-tenant's buyout option as set forth under the Heirs Act; and 5) such other and further relief as to the court may deem just, equitable and proper.
The central issue on the motion is whether this action for partition is governed by the traditional legal principles of partition or is subject to the special protections and procedures of the relatively new Uniform Partition Heirs Property Act ("the Heirs Act"). In order to categorize a partition action as a traditional or an heirs proceeding, the court must review the source of the title ownership of each owner. If a proceeding includes an owner that obtained title through inheritance, the property must be partitioned pursuant to the mandates of the Heirs Act.
Of import, the legal procedures, protections, and rights of the parties vary greatly depending upon whether the action is a traditional partition action or is subject to the Heirs Act. Under the traditional legal principles of partition, as set forth in RPAPL §§901-992, there are rigid procedures for determining the value of the property and whether a property is appropriately subject to partition, among other relief. Importantly, a traditional partition action often results in the property being sold at auction, sometimes at a significantly discounted price.
In contrast, the Heirs Act includes additional procedures and protections that are imposed in partition actions that involve individuals who acquired title through inheritance[2]. These procedures are more stringent, grant the parties significant additional rights, and often provide for the sale of the partition property based on fair market value. Accordingly, in an action to partition a property like this one, the procedures and the rights of the parties differ dramatically based on whether or not the property is determined to be an heirs property.
According to an affidavit, defendant Jacqueline Hayes (Hayes) met and became friends with decedent Charlesanna Adams (Adams) approximately sixty years ago in 1963. Over time, the friendship between Adams and Hayes developed into a romantic relationship.[3]
In 1969, the women acquired the Residential Property as joint tenants, with each owing a 50% interest in the property.[4] The couple lived together in the house for over thirty-five (35) years until Adams died in June 2005. After Adams passed, Hayes remained in the home and continues to live there today. Hayes is now over 80 years old.
In addition to owning part of the Residential Property, in 1992, Adams purchased a two-family house located on the same block as the Residential Property at 1437 Teller Avenue ("the Rental Property"). The title to this property was solely in Adams' name.
The court notes that, at the time that the women began to co-habituate, and in fact for their entire life together, the women were not entitled under New York State law, as a same sex couple, to marry. In fact, same sex marriage did not become legal in New York State until June 2011, well after Adams died in 2005.
When Adams died on June 23, 2005, she passed without a Will. Hayes alleges in this action that during their life together, Adams never mentioned any family members, no Adams family members ever visited the couple's home or the hospital, and no family members attended Adams' funeral.
After Adams passed in 2005, Hayes continued to live alone in the Residential Property and she still resides there to date. Hayes also allegedly maintained the Rental Property. Thirteen years after Adams' death, in June 2018, Hayes pro se filed a petition with the Bronx County Surrogate's Court wherein Hayes sought appointment as the administrator of Adams' estate
Hayes alleges that about this time she learned for the first time that Adams had two heirs at law, a niece named Valerie Galloway (the Niece) and a nephew named John V. Galloway, Jr. (the Nephew). It is undisputed that, by operation of law, as the sole distributes of Adams, the Niece and the Nephew each inherited 25% of the Residential Property, although it is not clear when the heirs became aware of that fact.
In an affidavit from the Niece, submitted in support of Gelinas' Motion #3, the Niece claims that she telephoned Adams at least ten times during the two years prior to Adams' death (from 2003-2005). The Niece alleges that she spoke to Hayes on several of those occasions. While averring that she called Adams when Adams was ill in 2005, the Niece claims that she was "shocked" to learn, after Hayes commenced a Surrogate's Court proceeding in 2018, that her aunt had died fourteen years earlier in 2005.
The Niece admits that she was notified of her aunt's death "through a company that monitors Surrogate filings", although she does not specify which company or attorneys contacted her. The Niece immediately challenged Hayes' standing in the proceeding and Hayes subsequently withdrew the petition in November 2019.[5]
Fifteen years after the death of Adams, on May 15, 2020, plaintiff Gelinas bought the Nephew's 25% share of the Residential Property for $15,000. Gelinas is a limited liability company which is in the business of property development.
Almost immediately, about six months later, Gelinas commenced the instant action for the partition and sale of the Residential Property and filed a Notice of Pendency[6] on January 11, 2021. It is undisputed that on the date of the filing of this litigation by Gelinas, Gelinas only owned a 25% interest in the property (which it acquired for $15,000), Hayes owned 50% (and had been living in the house for over 50 years), and the Niece, a named party, was an owner of a 25% interest in the property that she acquired through inheritance. It is also undisputed that, at the time, the Residential Property was worth approximately $800,000.
The Court takes judicial notice that around the same time in 2021, a second litigation (Bronx County Index No. 808237/2021e) was filed involving a similar attempt to transfer or claim title to real property, contrary to Hayes' alleged ownership, based entirely on the Niece's and the Nephew's inherited interests ("the Second Action"). Promptly after the commencement of this action, Seabiscuit Realty, LLC., a real estate developer, bought the Niece's and the Nephew's interest in the Rental Property and the right to collect the rent paid by tenants on May 5, 2021.
One month later, on June 16, 2021, Seabiscuit commenced the Second Action against Hayes claiming fraud, negligent misrepresentation, unjust enrichment, and General Business Law 349. Of note, Seabiscuit is represented in the Second Action by the same attorneys that represent Gelinas in this action.
In opposition to the developers' claims of ownership in the Second Action, Hayes alleges that she solely maintained, paid taxes on, and rented the Rental Property to tenants over the years from the time of Adams' illness until June 2021. Hayes therefore seeks a declaration that she holds full ownership of title to the Rental Property based on principles of adverse possession. The case remains in litigation[7] before another justice, and accordingly Hayes is presently confronting two litigations regarding her interests in valuable real property that involve Adams' relatives and the laws of intestate.
In any event, in terms of this case, the original complaint filed by Gelinas named Hayes and the Niece as defendants. The pleading sets forth causes of action for: a declaration that it owns 25% of the property; a partition of sale of the property; and an accounting for rents, profits and sales proceeds. Gelinas seeks the forced the sale of the home and the pleading does not mention the Heirs Act, or its special procedures and protections. At the time of commencement, however, the Niece was indeed an heir as defined by the Act.
Hayes, represented by former counsel, filed an answer with counterclaims on March 18, 2021, denying the allegations, alleging affirmative defenses (lack of grounds for partition and right to first refusal to buy at fair market value), and asserting counterclaims (accounting of costs, maintenance and rental income, and right to purchase as majority owner). The right to purchase at fair market value, as opposed to auction, is a particular right under the Heirs Act. Gelinas filed a reply to the counterclaims on April 21, 2021, which included general denials of the allegations in the counterclaims.
Six days later, on April 27, 2021, which was only eleven months after Gelinas' purchase of the 25% interest in the Property, and one month after the joinder of issue, Gelinas moved for summary judgment [Mot. Seq. 1] ("the Motion for Summary Judgment of Partition"). In the notice of motion, Gelinas sought an order: granting summary judgment its favor; requiring Hayes to furnish Gelinas with an accounting of all rental income received with respect to the Residential Property; and, pursuant to traditional partition law RPAPL §911, appointing a Referee and directing the Referee to ascertain the rights, shares and interests of the parties in the property sought to be partitioned.
It is undisputed that on the date that the Motion for Summary Judgment for Partition was filed, the Niece, a named defendant, was an owner through inheritance, and therefore was an heir within the meaning of the Heirs Act.
Inexplicably, Hayes' attorney failed to oppose the motion.
On May 14, 2021, Gelinas acquired the Niece's share of the Property for $60,000.
By Decision and Order dated September 22, 2021, the Honorable Kenneth L Thompson, Jr. denied Gelinas' Motion for Summary Judgment of Partition [Mot. Seq. 1] on the grounds that Gelinas failed to submit proof of service of the motion upon Hayes. The decision also directed that Surrogate's Court proceedings be taken to identify the lawful heirs of Adams.
Rather than proceed to Surrogate's Court as directed, on October 7, 2021, Gelinas moved [Mot. Seq. 2] to renew and reargue the denial of the Motion for Summary Judgment for Partition ("the Renew and Reargue Motion"). Gelinas also sought to discontinue the action against the Niece after acquiring her share of the property. On the motion, Gelinas submitted new evidence in the form of an affidavit of service of the motion as well as a new affidavit by Hayes' brother stating that Hayes and Adams were not sisters. Gelinas also submitted a new affidavit from a genealogy expert opining that Hayes is not an heir of Adams.
Strikingly, Hayes' attorney did not submit opposition the motion [Mot. Seq. 2], which was marked submitted on November 21, 2021. This was the second time that the attorney failed to act to protect Hayes' rights and interests in the real property.
Hayes acquired new counsel in December, 2021.
On March 22, 2022, the Court issued a notice of a "Partition of Heirs Property Settlement Conference". This is a conference that is mandated by the Heirs Act. The Court scheduled the Partition of Heirs Property Settlement Conference for 10:00 a.m. on May 2, 2022.
On March 22, 2022, Gelinas' counsel filed a letter addressed to the referee with the Court. In the letter, Gelinas' counsel argued that a Partition of Heirs Property Settlement Conference was not required because neither Gelinas nor Hayes inherited title to the property from a relative. Gelinas maintained that, therefore, the Heirs Act is inapplicable and the proceeding should proceed as a standard partition action. Gelinas did not file a motion as to the issue.
Thirteen days later, and before a response to the letter was filed by Hayes, by Decision and Order dated April 4, 2022, the Honorable Kenneth L. Thompson, Jr., granted Gelinas' Renew and Reargue Motion [Mot. Seq. 2], which sought to renew and reargue Gelinas' denied Motion for Summary Judgment of Partition [Mot. Seq. 1]. Again, no opposition had been filed by Hayes' former attorney to the Renew and Reargue Motion and it was granted on default.
In its decision, the court determined, on default, that Hayes was not Adams' heir, and implicitly that the Heirs Act was inapplicable, and held that the previous court referral to Surrogate's Court was rendered moot. The court therefore granted Gelinas' underlying Motion for Summary Judgment for Partition [Mot. Seq.1] on default but did not dismiss Hayes' counterclaims. The matter was referred to a referee for a standard partition hearing[8].
Consequently, the Partition of Heirs Property Settlement Conference scheduled for May 2, 2022, was cancelled.
On June 28, 2022, Referee Joyce Brown, Esq., issued a traditional partition report finding inter alia that Gelinas and Hayes each owned 50% of the property and directing that the house be sold as a whole unit ("the Referee's Partition Report"). Immediately, on July 15, 2022, Gelinas moved [Mot. Seq. 3] for an order confirming the Referee's Partition Report and issuing a judgment of partition and sale.
Hayes, by new counsel, cross-moved for an order vacating the referee's report. In the motion papers, Hayes' attorney argued that former defense counsel was ineffective as a matter of law and challenged the report.
On January 6, 2023, the Honorable Kenneth L. Thompson issued a Decision and Order granting Gelinas' motion [Mot. Seq. 3] to confirm the Referee's Partition Report and denying Hayes' cross-motion. The Court directed the parties to Settle Order.
On January 12, 2023, Gelinas submitted a proposed Judgment of Partition and Sale to the Court which was unopposed. A few days later, on January 27, 2023, the Court issued the Judgment of Partition and Sale. Eleven days later, on February 9, 2023, plaintiff served Notice of Entry of the Judgment.
By email correspondence with the court attorney referee, starting on April 6, 2023, Gelinas' counsel communicated directly with the court referee to schedule some form of court conference. In the thread of emails, plaintiff's counsel twice asks whether the referee agreed that the Residential Property was not an heirs property. While Hayes' attorney was included on the email chain, Hayes' attorney did not respond to or affirm the contents of the emails by email or in the record.
On April 10, 2023, it appears that a court conference was held. In the relevant part of the email chain, on April 12, 2023, the referee states that "I recommended that the property is not heirs property and the auction date be set". The parties do not claim that the required procedures and considerations of the Heirs Act were a part of this court conference.
After Justice Thompson retired, this Court was assigned the action in late April 2023.
Two months later, on June 16, 2023, Gelinas filed a Notice of Sale. The Residential Property was noticed to be sold at auction on July 10, 2023. Based on the appraisal submitted by defendant dated June 24, 2023, the Residential Property had an appraised value of $805,000.
Before the sale date, on July 6, 2023, Hayes brought the instant motion [Motion Seq. 4] by Order to Show Cause. In this motion, Hayes seeks an Order staying the sale and an order, pursuant to RPAPL § 993 (the Heirs Act): vacating the judgment of partition and sale on the grounds that the Court failed to conduct a Partition of Heirs Property Settlement Conference and to provide other statutory protections, as is required by law; determining the value of the property; and allowing Hayes to exercise her buyout options under the provisions of the Heirs Act. The motion also sought "such other and further relief as to the court may deem just, equitable and proper".
On July 6, 2023, this Court signed Hayes' Order to Show Cause and issued a temporary restraining order staying the sale of the Residential Property pending the outcome of the instant motion. Gelinas opposes the motion. The action was conferenced by the court several time prior to the final submission of the motion.
At the heart of this case is the appropriate and fair disposition of the home of a same sex, unmarried couple that lived together in the house for almost 50 years. One challenging legal issue here is whether, based on the heirs relationship of an originally named party, the action falls within the special protections of the Heirs Act when, post-commencement, the originally named heir's interest was purchased by plaintiff.
As an initial matter, the Court finds that, although not explicitly labeled as such, the Notice of Motion and underlying motion papers [Mot. Seq. 4] give notice that Hayes seeks to vacate her former attorney's default on the Motion to Renew and Reargue [Mot. Seq. 2], and upon vacatur, seeks an order denying the motion.
Moreover, as the Notice of Motion and underlying papers include general prayers for relief, the motion is appropriately treated as such a motion to vacate. A court may grant relief not specifically requested in the notice of motion, pursuant to a general prayer for relief contained in the notice of motion or the papers, if the relief is warranted by the facts plainly appearing in the papers on both sides, and if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party (see generally, Robert v. Azoulay Realty Corp., 209 AD3d 781 [2d Dept 2022]; see Caesar v. Metropolitan Transportation Authority, 229 AD3d 601 [2d Dept 2024]).
As Hayes' moving papers contain a general prayer for relief, this Court will, in its discretion, treat the motion as a motion to vacate a default. All of the relevant issues generated by this motion, the Motion to Renew and Reargue, and the underlying Motion for Summary Judgment of Partition are extensively briefed by the parties and were addressed at oral argument. Under the circumstances, based on the extensive litigation of the facts and legal arguments by the parties, the relief to be granted is not dramatically unlike the articulated relief sought. Importantly, as Hayes' former attorney defaulted on the previous motions [Mot. Seq. 1 and Mot. Seq. 2], the strong public policy in favor of resolution of a motion on the merits was not served.
Generally, to obtain vacatur of a default judgment under CPLR 5015(a)(1), a party must demonstrate a reasonable excuse for the default and the existence of a potentially meritorious defense or claim (Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., 67 NY2d 138 [1986]; see Kolodziejski v. Jen-Mar Electric Service Corp., 2024 NY Slip Op. 04815 [1st Dept 2024]; Li Fen Li v. Cannon, Co., 155 AD3d 858 [2d Dept 2017]).
Of import, the grounds set forth in CPLR 5015 are not exclusive and courts retain inherent discretionary power to vacate their own judgments for sufficient reason and in the interests of substantial justice (Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; NYCTL 1998-2 Trust v. Bronx County Public Administrator, 213 AD3d 614 [1st Dept 2023]; Joyner v. City Carter Leasing Inc., 211 AD3d 406 [1st Dept 2022]; Inwald Enters., LLC. v. Aloha Energy, 153 AD3d 1008 [3d Dept 2017]; Gurin v. Pogge, 112 AD3d 1028 [3d Dept 2013]; see generally MTGLQ Investors, L.P. v. Vazquez, 2024 NY Slip Op. 05059 [1st Dept 2024]). This discretion is applicable in situations that involve "unique or unusual" circumstances that warrant such action (Matter of Cassini, 182 AD3d 13 [2d Dept 2020]; see NYCTL 1998-2 Trust v. Bronx County Public Administrator, supra; Joyner v. City Carter Leasing Inc., supra; Wade v. Village of Whitehall, 46 AD3d 1302 [3d Dept 2007]; Soldovieri v. Flack, 106 AD3d 717 [2d Dept 2013]; Soggs v. Crocco, 247 AD2d 887 [4th Dept 1998]; see also Go Sweat, LLC v. GRA Legal Title Trust 2013-1, U.S. Bank, National Association, 225 AD3d 486 [1st Dept 2024]; Cox v. Marshall, 161 AD3d 1140 [2d Dept 2018]).
The determination of whether to vacate a default judgment rests within the sound discretion of the Supreme Court, although a disposition on the merits is strongly favored (Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., supra; Woodson v. Mendon Leasing Corp., supra; SOS Capital v. Recycling Paper Partners of PA, LLC, 220 AD3d 25 [1st Dept 2023]; Gerdes v. Canales, 74 AD3d 1017 [2d Dept 2010]; Inwald Enterprises, LLC v. Aloha Energy, supra). Accordingly, a motion to vacate a prior judgment is addressed to the court's sound discretion subject to reversal only where there has been a clear abuse of discretion (Inwald Enterprises, LLC v. Aloha Energy, supra) and actions should be resolved on the merits when circumstances justify the same (see generally Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., supra; Gerdes v. Canales, supra).
Initially, the court finds that under the facts presented, Hayes demonstrates a reasonable excuse for the default on the Motion to Renew and Reargue. Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits (Singh v. Sukhu, 180 AD3d 837 [2d Dept 2020]; Inwald Enterprises LLC v. Aloha Energy, supra).
Here, for reasons that cannot be explained, Hayes' former counsel failed to oppose two critical motions which resulted in depriving Hayes of significant real property rights on default. While there indeed may be instances where counsel's inaction or dilatory conduct may be imputed to the client (see e.g. Carillon Nursing & Rehabilitation Ctr., LLP v. Fox, 118 AD3d 933 [2d Dept 2014]; Gutman v. A to Z Holding Corp., 91 AD3d 718 [2d Dept 2012]), a review of the moving and opposition papers, together with the supporting documentation, reveals that Hayes never intended to abandon the defense to the case or her commitment to asserting her rights in this action (Singh v. Sukhu, supra; Inwald Enterprises, LLC v. Aloha Energy, supra; see e.g. Puchner v. Nastke, 91 AD3d 1262 [3d Dept 2012]). Rather, Hayes reasonably believed that her attorney was actively pursuing and properly defending her valuable and important real property interests in the context thereof (Singh v. Sukhu, supra; Inwald Enterprises, LLC v. Aloha Energy, supra; Gage v. Village of Catskill, 144 AD3d 1365 [3d Dept 2016]; see also Rekhtman v. Clarendon Holding Co., Inc., 165 AD3d 856 [2d Dept 2018]; Abel v. Estate of Collins, 73 AD3d 1423 [3d Dept 2010]).
In addition, while Gelinas has litigated this action at an aggressive pace, there is no showing that undue delay or prejudice will result from the vacatur of the default (see Zoom Tan, Inc. v. Monforte, 227 AD3d 1237 [3d Dept 2024]; DaimlerChrysler Ins. v. Seck, 82 AD3d 581 [1st Dept 2011]). In fact, there is no allegation of any prejudice to plaintiff and the strong public policy in favor of resolving cases on the merits is served by vacating the default (Singh v. Sukhu, supra; Inwald Enterprises LLC v. Aloha Energy, supra; Abel v. Estate of Collins, supra; Gross v. Johnson, 102 AD3d 921 [2d Dept 2013]).
As for the second element of a meritorious defense, it is noted that the quantum of proof required in support of a motion to vacate a default judgment is not as great as that which is required to oppose a motion for summary judgment (see Williams v. City of New York, 71 AD3d 605 [1st Dept 2010]; Zoom Tan, Inc. v. Monforte, supra). A movant need only show a potential meritorious defense (DaimlerChrysler Ins. Co. v. Seck, supra).
Here, the multiple affirmative defenses alleged in the proposed answer and the legal arguments in the papers with regards to the potential applicability of the Heirs Act generate numerous relevant issues that, if resolved in defendant's favor, would sustain the alleged defenses. Of import, the argument that the Residential Property is, as a matter of law, subject to the Heirs Act's procedures and protections has been consistently raised and argued and, if correct, serves as a defense to the traditional partitioning of the Residential Property granted on default. Hence, Hayes' motion to vacate the default on the Motion to Renew and Reargue is appropriately granted.
In any event, the court finds that, the under the constellation of circumstances presented in this case, this action involves "unique or usual" facts that warrant the vacatur of the default judgment in the interests of substantial justice (Matter of Cassini, supra; Woodson v. Mendon Leasing Corp., supra; NYCTL 1998-2 Trust v. Bronx County Public Administrator, supra; Joyner v. City Carter Leasing Inc., supra; Wade v. Village of Whitehall, supra; Soldovieri v. Flack, supra; Soggs v. Crocco, supra; Inwald Enters., LLC. v. Aloha Energy, supra; Gurin v. Pogge, supra). Specifically, Hayes, who is 80 years old, was served with two lawsuits filed by significant real estate development companies within one year regarding property that was maintained by her with her life partner for decades and which she managed on her own for years after her partner's death. It is undisputed that Hayes has lived in the couple's residential home for over 50 years and the property is her home.
Faced with the lawsuit by property developers to force the sale of her home, Hayes hired an attorney to protect her interests who undisputedly completely abandoned her defense. Furthermore, the intense pace of the litigation fostered by plaintiff limited the time in which Hayes could even learn of and understand her counsel's repeated defaults. At the same time, Hayes' interests in the Rental Property were being aggressively challenged in another litigation that is also in an expedited litigation posture. Finally, as the central issue here is the value of real property, an irreplaceable asset, justice requires a determination of rights based on the law, not an attorney's malpractice or a default. Accordingly, the court finds that the interests of substantial justice weigh heavily in favor of vacating the default on the motion (Matter of Cassini, supra).
At its essence, the motion [Mot. Seq. 2] that was granted on default was founded in renewal. On the renewal motion, Gelinas submitted new evidence as to Hayes' ancestry and argued that it established, as a matter of law, entitlement to summary judgment and the partition of the Residential Property under traditional, and not Heirs Act, partition procedures.
On this motion, Hayes once again argues that the Heirs Act governs and the existing order of partition violates that law. In opposition, Gelinas contends that the Heirs Act is inapplicable because, as of now, none of the parties are "heirs" within the meaning of that statute.
As stated, the central issue to be determined here is whether RPAPL § 993 requires that the Residential Property be treated as an heirs property which is subject to the special rules and procedures of the Heirs Act or whether the traditional principles of partition govern the parties' rights. A joint tenant or tenant-in-common to real property may maintain an action to partition of the property. The interest may be "an estate of inheritance, or for life, or for years." (Donlon v. Diamico, 33 AD3d 841 [2d Dept 2006]). Importantly, in all circumstances, the right to partition is not absolute and the remedy is always subject to the equities between the parties (Clarke v. Clarke, 227 AD3d 659 [2d Dept 2024]).
RPAPL §§991-992 outline the procedures for a traditional partition. As relevant here, a traditional partition permits the sale of the property at auction, includes a standard partition settlement conference, does not include a priority right to purchase others' interests, and does not require a fair market sale.
RPAPL § 993, known as "the Heirs Act", was passed in 2019 to amend these traditional partition proceedings. This new law was intended to protect individuals who hold real estate held as tenants-in-common from predatory real estate speculators (Senate Mem in Support, New York Bill Jacket, 2019 S.B. 4865 Ch 596). The legislature memorandum provides:
"In recent years, predatory real estate speculators have taken advantage of New York's laws governing partition actions by purchasing a stake in a residential property — usually after a number of family members have inherited the property — and then using that ownership stake to file a partition action to dispossess the family of the property through a forced sale, often for pennies on the dollar relative to the actual value of the property. Lower- and middle-class families are particularly susceptible to these types of schemes, as they often do not engage in the kind of sophisticated estate planning that could prevent predatory partitioning actions." (id.).
Hence, the Heirs Act is designed to protect family-held lands from speculators who acquire properties by leveraging minority interests to force a partition sale. The intent is to allow relatives holding fractional interests to acquire full ownership or receive full value of their interest in legacy real property through additional service requirements, court conferencing, and appraisal requirements. The Heirs Act permits partition by sale only after all of the heirs have an opportunity to purchase the interests of the selling co-tenants. Only then may the court direct commercially reasonable sale, which need not be by auction.
So, in furtherance of these public policy concerns, the Heirs Act, among other things, specifically imposes procedural safeguards to protect tenants-in-common of heirs property. The statute requires that: 1) the court shall determine, after notice and the right to be heard, whether the property is heirs property and if the property is heirs property it shall be partitioned in accordance with the Act; 2) within sixty days of the filing of the RJI, a mandatory partition settlement conference be held; 3) the co-owner requesting partition must give notice to all of the other co-owners; 4) the court must order an independent appraisal to determine the property's fair market value; 5) any co-owner may exercise a right of first refusal to buy out the interest of the co-owner seeking partition for a proportional share of the court-determined fair market value; 6) if no co-owner elects to buy out the co-owner seeking partition, the court must first consider ordering a partition-in-kind if the property can be physically divided; and 7) if a partition-in-kind would be inappropriate, and the court orders a partition-by-sale, the property must be offered for sale on the open market at a price no lower than the court-determined value for a reasonable period of time and in a commercially reasonable manner (RPAPL § 993). The law contains additional service (posting) requirements, and additional court conferencing (the Partition of Heirs Property Settlement Conference), akin to the settlement conferences in mortgage foreclosure actions (see CPLR 3408).
Importantly by its express terms, the Heirs Act does not apply in all cases where individuals own real estate as tenants-in-common. In relevant part, the Heirs Act only protects "Heirs property" as expressly defined by its provisions:
(e) "Heirs property" means real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action:
(i) there is no agreement in a record binding all of the co-tenants which governs the partition of the property;
(ii) any of the co-tenants acquired title from a relative, whether living or deceased;
(iii) the property is used for residential or agricultural purposes; and
(iv) any of the following applies:
(A) twenty percent or more of the interests are held by co-tenants who are relatives;
(B) twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased;
(C) twenty percent or more of the co-tenants are relatives of each other; or
(D) any co-tenant who acquired title from a relative resides in the property.
(RPAPL § 993[2][e] [emphasis added]). In other words, the law applies to a limited class of partition actions where, on the date of commencement, a tenant-in-common has inherited his or her share of a property from a co-tenant that passed away.[9]
Applying the express language of the Heirs Act to the facts presented here, it is clear that the Residential Property qualifies as heirs property under the Act because the Niece was an heir at the time of the commencement of the partition action. When presented with a question of statutory interpretation, a court's primary consideration is to ascertain and give effect to the intention of the Legislature. The text of the statute is the clearest indicator of legislative intent and the court should construe unambiguous language to give effect to its plain meaning (Nadkos, Inc. v. Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1, 7 [2019]; Smith as Trustee of Jay and Patricia Smith Irrevocable Trust v. Smith as Trustee of Theodore, PS, 217 AD3d 1484 [4th Dept 2023]). It is also a well-established rule that statutory language should be harmonized, giving effect to each component and avoiding a construction that treats a word or phrase as superfluous (Nadkos, Inc. v. Preferred Contrs. Ins. Co. Risk Retention Group, LLC, supra).
Here, the Heirs Act expressly defines the meaning of the term "Heirs property" to include "real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action", and where "any of the co-tenants acquired title from a relative, whether living or deceased" and "twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased".
Thus, contrary to plaintiff's contention, a partition action falls within the Heirs Act if, on the date of commencement of the action, any of the co-tenants acquired title from a relative, whether living or deceased (RPAPL § 933[2][e] [iii]; Smith as Trustee of Jay and Patricia Smith Irrevocable Trust v. Smith as Trustee of Theodore, PS, 217 AD3d 1484 [4th Dept 2023]). By specific statutory language, the categorization of the relevant property to be partitioned as a "Heirs Property" is determined on the date of the filing of the partition petition.
Here, Gelinas acquired the Nephew's 25% stake in the property for $15,000 and then filed the instant action against Hayes and the Niece seeking to force the sale of the home by partition. Based on the express language of the statute, therefore, this action falls within the purview of the Heirs Act because, at the time that the partition action was commenced, the named defendant Niece was a heir with a 25% of the ownership interest in the property. Accordingly, the partition action was required to proceed under the procedures set forth in the Heirs Act and the failure to follow said procedures was a violation of the statute that must be remedied.
To the extent that Gelinas may argue that its later, post-commencement, purchase of the Niece's interest removed the action from the Heirs Act's sphere, such a conclusion is in direct conflict with the express language of the law, and the express language will govern. There is no mechanism within the Heirs Act for the release of an action from its procedures whenever, sometime post-commencement, a party sells his or her interest.
In addition, any argument that the April 2023 court conference somehow satisfied the Heirs Act is without merit. Among other deficiencies under the Act, the conference was held after the entry of judgment and well beyond 60 days from the filing of the RJI.
Importantly, this interpretation of the express language of the Heirs Act and the legal consequences thereof are consistent with the recent amendment to the statute. Although not applicable to this proceeding, in July 2024, the Heirs Act was amended to add additional protections for tenants-in-common of heirs property. Effective July 19, 2024, subd. 12 and 13 were added prohibiting the purchaser from a protected heir from commencing a partition action (subd. 12) and establishing a hierarchical right of first refusal against any purchase offer (subd. 13), giving heirs in possession as a residence first right. Practice Commentaries, NY RP Act & Pro 993 (July 19, 2024). The provisions make clear that, under the Heirs Act, a purchaser such as Gelinas lacks standing to even commence a partition proceeding because the property was owned by an heir, and Gelinas acquired its shares "by means other than inheritance".[10]
Of note, this interpretation of the Heirs Act also serves the parties' interest in stability in litigation. To conclude the contrary would create uncertainty as to the procedures and the legal protections provided to the parties in an Heirs Act partition as the nature and governing law of the proceeding could be altered at any time during the ongoing litigation simply by a party's sale of its rights. Certainly, the application of the Heirs Act may affect the value of the property, the parties' decision to sell their interest, or even the decision to seek partition at all.
Accordingly, based on the express language of the Heirs Act, the court finds, after notice and the right to be heard was afforded to each party, that the Residential Property is heirs property subject to the procedures and protections of the Heirs Act. The property shall be therefore partitioned in accordance with guidelines and procedures set forth in the Act beginning with the prompt scheduling of a Partition of Heirs Property Settlement Conference.
Significantly, much of the narrative in this case resembles the type of unjust circumstances that the Heirs Act is designed to remedy. Hayes, lifetime partner to Adams, faces the forced sale of their family home due the purchase, at a nominal price, of distant relatives' interests in the home by a property developer. Gelinas, a real estate company, now seeks to use these relatively inexpensive purchased interests to force the property through a traditional partition proceeding to auction sale, a situation that is rife with the potential abuses specifically sought to be prevented by the Heirs Act. Hence, while Hayes is not strictly an heir under law, the application of the Heirs Act to the circumstances will not result in injustice, but will, in fact, serve the intention of the legislation.
In any event, the right to partition is not absolute and the partition remedy is always subject to the equities between the parties, and the court finds that the result reached herein serves equitable interests (Clarke v. Clarke, supra). As discussed herein, the facts of the case generate significant questions of equity and fairness. Hayes and Adams acquired a house and resided in it together for over 50 years as a couple until Adams passed away. Hayes, who is in her eighties, continued to live alone in the home for over a decade more. It is undisputed that Adams' relatives never visited the home, visited Adams in the hospital or attended the funeral, and inherited their aunt's share of the property without ever having seen it. The low price paid by Gelinas ($75,000) for the right to partition a property that is worth over a $800,000, combined with the expedited pace of litigation of the case by Gelinas, raise concerns of inequity and unfairness. This constellation of circumstances generates concerns of whether a fair price would be obtained and equity would be served by an immediate traditional auction. Hence, based on the unique facts presented, even if the proceeding were to proceed as a traditional partition, a balancing of equities would weigh in Hayes' favor and would warrant additional safeguards to ensure that the parties receive a proper share of the property and its benefits (see Conroy v. Conroy, 215 AD3d 630 [2d Dept 2023]; Lauriello v. Gallotta, 70 AD3d 1009 [2d Dept 2010]; Colley v. Romas, 50 AD3d 1338 [3d Dept 2008]; Haines v. Haines, 254 AD2d 516 [3d Dept 1998]; Stressler v. Stressler, 193 AD2d 728 [2d Dept 1993]; Ripp v. Ripp, 38 AD2d 65 [2d Dept 1971], aff'd, 32 NY2d 755 [1975]; see generally, Coston v. Greene, 188 AD3d 1147 [2d Dept 2020]; Tsoukas v. Tsoukas, 107 AD3d 879 [2d Dept 2013]; Arata v. Behling, 57 AD3d 925 [2d Dept 2008]).
The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any contention raised by the parties is not addressed by the Court, it is hereby rejected.
Accordingly, it is hereby
ORDERED that the part of the motion of defendant JACQUELINE HAYES [Mot. Seq. 4], brought by Order to Show Cause, that, in essence, seeks an order vacating the court's Decision and Order dated April 4, 2022 ("the Prior Decision") which granted, on default, plaintiff GELINIS LLC's Motion to Renew and Reargue [Mot. Seq. 2] is granted; and it is further
ORDERED that the Prior Decision is vacated; and it is further
ORDERED that, upon vacatur, the Motion to Renew and Reargue [Mot. Seq. 2] is denied to the extent that the court finds that this partition action is subject to the Heirs Act and its mandated legal procedures; and it is further
ORDERED that, in light of the court's finding that the action is subject to the Heirs Act, this partition action shall now proceed in accordance with the procedures outlined in the Heirs Act; and it is further
ORDERED that the Judgment of Partition and Sale dated January 27, 2023, is vacated and the Clerk shall mark the Judgment of Partition and Sale vacated in all court records; and it is further
ORDERED that this partition action shall promptly proceed to a Partition of Heirs Property Settlement Conference; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of entry on the Clerk managing Partition of Heirs Property Settlement Conferences by November 25, 2024, and upload an affidavit of service demonstrating said service by November 30, 2024, and said conference shall be promptly scheduled; and it is further
ORDERED that the court's Stay on the sale of the Residential Property pending the outcome of the instant motion shall be lifted upon the completion of the Partition of Heirs Property Settlement Conference; and it is further
ORDERED that defendant shall serve a copy of this order with notice of entry on the Judgment Clerk by November 25, 2024, and upload an affidavit of service by November 30, 2024; and it is further
ORDERED that the remaining part of the motion [Mot. Seq. 4] that seeks an order determining the value of the Residential Property under the Heirs Act and permitting a co-tenant to exercise co-tenant's buyout option as set forth under the Heirs Act and other relief is granted only to the extent that the action shall procced in accordance with the procedures of the Heirs Act; and it is further
ORDERED that the Clerk shall mark motion sequence 4 as decided in all court records.
The foregoing constitutes the Decision, Order Judgment of the court.
[1] Plaintiff's moving papers (Motion #1) describe the residence as a two-family house; however, the referee's report describes the property as a single-family residence.
[2] The Heirs Act supplements the general partition law (RPAPL §§901-992) and if a partition action is governed by the Act, the Act will replace the provision of the general partition statute that are inconsistent with the Act. RPAPL§§ 993(3)(a);(3)(b) and 993(3)(c).
[3] Hayes describes the relationship between the deceased and Hayes in an affidavit submitted in connection with Motion #2.
[4] Hayes describes the circumstances surrounding the purchase of the Residential Property in an affidavit submitted in support of the instant motion (Motion #4).
[5] In a decision dated September 16, 2021, Justice Thompson found that: "Hayes withdrew her petition in Surrogate's Court on the return date of a revocation proceeding. Plaintiff contends that Hayes' petition was fraudulent which led to the withdrawal. However, the order of Justice Nelida Malave-Gonzalez dated November 26, 2019, merely memorializes the withdrawal of the petition on the return date of a revocation proceeding. This Court cannot speculate as to the reason for the withdrawal of the petition and dismissal of Hayes' claim to being a distribute".
[6] The Notice of Pendency states that it is filed by "plaintiff Lightcap1, LLC.". There is no such party in this action.
[7] In the Second Action, third-party defendant YSLW Teller LLC, allegedly purchased the Rental Property from Seacrest taking out a 1.5 million-dollar mortgage and a 2.4 million dollar Building Loan Mortgage on the Rental Property, evidence that the rental property has significant value. As an alleged subsequent purchaser, YSLW is impleaded.
[8] On May 18, 2022, the court issued an amended Order to correct a typographical error in the April 4, 2022, decision.
[9] Effective July 19, 2024, subd. 12 and 13 were added to the Heirs Act prohibiting the purchaser from a protected heir from commencing a partition action (subd. 12) and establishing a hierarchical right of first refusal against any purchase offer (subd. 13), giving heirs in possession as a residence first right. Practice Commentaries, NY RP Act & Pro 993 (July 19, 2024).
[10] "12. Prohibition on initiation of a partition action. No partition action related to an heirs property may be initiated by a party that purchased or otherwise acquired their share or shares by means other than inheritance, and who did not inherit their share or shares directly from a person who was a co-tenant prior to the property becoming heirs property or from a co-tenant who was an heir thereto."
KS v. JS, 2024 NY Slip Op 51418 - NY: Supreme Court, Putnam 2024:
"VICTOR G. GROSSMAN, J.
It is ORDERED that the application is disposed of as follows:
This is a contested matrimonial action. On June 25, 2024, the parties placed an oral stipulation (the "Stipulation") relative to the custody of their two young children on the record in open court. The transcript of the proceeding was "so ordered" by the Court. So far as pertains to the dispute presently before the Court, the transcript states as follows:
Ms. Gallo: Your Honor, I believe that we reached a settlement based on what the AFC has told us. . . . I do believe that we can probably put the bullet points of the settlement on the record, but it will be subject to a complete custody and access stipulation that we would then ask the Court to so order
. . . . .
The Court: Is it the parties' intention that the bullet points will be controlling unless or until a formal document is executed?
Ms. Gallo: Yes, Your Honor.
The Court: Okay. Is that your understanding as well?
Ms. Dewbury: Yes, Your Honor.
The Court: All right. And, Mr. Deurso, is that your understanding as well?
Mr. Deurso: Yes, Judge, that's my understanding.
Ms. Gallo: The parties in this matter will have joint legal custody of the two minor children, L.S. and Lu. S. The parties are going to utilize John Pappalardo as a parent coordinator solely for major decisions of health, education and religion. . . . There will also be — the parties will be guided by the recommendation of the PC in making major decisions. And the party who the PC is in agreement with will be able to implement their decision subject to the other party's right to seek a stay from a court of competent jurisdiction. . . . With respect to the residential custody of the children, the Plaintiff will have primary residential custody of the children subject to the Defendant's access schedule with the children which will be as follows:. . . .
(Transcript, June 25, 2024, pp. 4-6)
DEFENDANT'S APPLICATION
Plaintiff thereafter took unilateral action with respect to the children which Defendant claims violated his rights under the Stipulation as a parent enjoying joint legal custody of the children. Defendant in consequence filed the present application for an order as follows:
1. Declaring and/or directing that the parties' June 25, 2024 joint custody agreement, which was "So Ordered" by this Court:
(a) requires the parties to engage in good faith consultation (email exchanges to suffice) regarding all important or major decisions (hereinafter "Major Decisions") concerning the parties' two minor children . . . prior to the [i] submission of unresolved Major Decisions related to the health, education and religion of/for the Children to the parties' agreed on parent coordinator; and [ii] implementation of any other Major Decisions concerning the Children;
(b) precludes either party from unilaterally implementing any Major Decisions absent the issuance of a recommendation by the parties' agreed on parent coordinator (related to the health, education and religion of/for the Children) or without the express written consent or agreement of the other party regarding any other Major Decisions concerning the Children;
2. Declaring that Major Decisions concerning the Children include health, education and religious decisions of the Children, as well as decisions or issues relating to dental, therapeutic, psychiatric, extracurricular activities (both school related and activities unrelated to school), summer camp, summer programs, day care, day care facilities, and tutoring of/for the Children;
3. Declaring that if either party unilaterally implements any Major Decisions concerning the Children without the express written consent of the other party or the issuance of a recommendation by the parties' agreed on parent coordinator with regard to health, education and religious decisions concerning the Children, the other party shall not be required to contribute to the cost of any unilaterally implemented Major Decisions . . .
Plaintiff in opposition asserts that the Stipulation unambiguously restricts "Major Decisions" to those concerning "health, education and religion."
A matrimonial settlement agreement is a contract subject to principles of contract interpretation. See, Rainbow v. Swisher, 72 NY2d 106, 109 (1988). The rule applies to oral stipulations placed on the record in open court: "[a]n oral stipulation of settlement that is made in open court . . . is enforceable as a contract and is governed by general contract principles for its interpretation and effect; [t]he role of the court is to determine the intent and purpose of the stipulation based on an examination of the record as a whole." Scherer v. North Shore Car Wash Corp., 72 AD3d 927, 929 (2d Dept. 2010); Koppie v. Koppie, 62 AD3d 666, 667 (2d Dept. 2009); Flannery v. Flannery, 54 AD3d 804 (2d Dept. 2008).
The plain text of the agreement is the best source of the parties' intent. See, Goldman v. White Plains Center for Nursing Care, 11 NY3d 173, 176 (2008); Burns v. Burns, 163 AD3d 210, 213 (4th Dept. 2018). "Where . . . the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence (Nichols v. Nichols, 306 NY 490, 496 . . .)." Rainbow v. Swisher, supra, 72 NY2d at 109.
Here, however, the parties offer conflicting interpretations of the Stipulation.
According to Defendant:
The parties in this matter agreed to share joint legal custody of the Children. Neither has final decision-making authority and neither has the unilateral right to implement any important or major decisions regarding the children . . . [J]oint legal custody encompasses more than only the health, education and religious decisions that the parties agreed to submit to a parenting coordinator in the absence of an agreement between themselves.
(Kesten Aff. ¶¶ 2, 3)
Plaintiff is wrong in even suggesting that the parties' agreed that "health, education and religion" are the only "major decisions" that exist or require joint decisions. They are simply the only categories of major issues for which the parties made alternate or tie breaking resolution arrangements if they were unable to mutually agree on a decision relating to those three categories on their own.
(Kesten Reply Aff. ¶4)
According to Plaintiff:
Defendant's contention that the Stipulation only prescribes which Major Decisions will be submitted to the Parent Coordinator and does not actually define the ambit of Major Decisions in general is not accurate. The Parties agreed that the Parent Coordinator would be used to resolve Major Decisions regarding health, education and religion on which the Parties could not agree and intentionally limited the scope of those decisions to those three (3) specific categories. Defendant's argument that entire unidentified swathes of Major Decisions could exist (and that they are without any mechanism for resolution) defies logic.
(Gallo Aff. ¶9)
The very nature of family matters is highly discretionary, individualized, and flexible and there is no statutory definition of what constitutes a Major Decision or, for that matter, even joint legal custody . . . The purpose of designating Major Decisions (and attendant dispute resolution mechanisms) is to distinguish a subset of particularly consequential decisions that require a greater degree of coordination and input between divorced parents. Doing so accomplishes the dual purpose of ensuring that both parents are involved in making the most significant types of decisions while also exempting the dozens of less significant decisions from time consuming and conflict-inducing back and forth.
(Gallo Aff. ¶¶ 15, 16)
On a purely literal reading of the language of the Stipulation, it would appear that Defendant has the better of the textual argument. The critical language, once again, is:
The parties in this matter will have joint legal custody of the two minor children, L.S. and Lu.S. The parties are going to utilize John Pappalardo as a parent coordinator solely for major decisions of health, education and religion. . . .
The parties by this language agreed to "joint legal custody" without qualification, i.e., without delimitation of the areas of the children's life to which it applies. That they agreed to use a PC "solely for major decisions of health, education and religion" is naturally read, as Defendant suggests, as carving out a subset of issues for reference to the PC when the parents reach an impasse.
D. Construction in the Event of Ambiguity
Plaintiff's view — that providing a mechanism of resolution "solely for major decisions of health, education and religion" effectively limited the scope of "joint legal custody" — goes beyond the literal language of the Stipulation and rests on an argument that given the fluid and ill-defined nature of such things as "family matters", "joint legal custody", and "major decisions", it "defies logic" to suggest that the parties would go to the trouble of specifying a mechanism of resolution for only a subset of the major decisions on which the parents could disagree under a regime of joint legal custody. If and to the extent that Plaintiff's interpretation gives rise to an ambiguity requiring resort to extrinsic aids to reach a proper construction of the Stipulation, it invites consideration of the law of "joint legal custody", which was certainly present to the minds of practitioners as learned and astute as those representing the parties herein.
In Dolman v. United States Trust Co. of NY, 2 NY2d 110 (1956), the Court of Appeals wrote:
[I]t is basic that, unless a contract provides otherwise, the law in force at the time the agreement is entered into becomes as much a part of the agreement as though it were expressed or referred to therein, for it is presumed that the parties had such law in contemplation when the contract was made and the contract will be construed in the light of such law.
Id., 2 NY2d at 116. Elaborating on Dolman, the Fourth Department has written:
The Dolman rule is of longstanding vintage, and the "principle embraces alike those [laws in force at the time of a contract's execution] which affect its validity, construction, discharge, and enforcement" (Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 550 . . . [1866] [italics added in Burns]. By virtue of the Dolman rule, when parties enter into an agreement authorized by or related to a particular statutory scheme, the courts will presume — absent something to the contrary — that the terms of the agreement are to be interpreted consistently with the corresponding statutory scheme [cit.om.].
Burns v. Burns, supra, 163 AD3d at 214. Broaching the issue from the perspective of the parties' reasonable expectations, the First Department has observed:
Besides the common meaning of the language employed, the expectations and purposes of the parties in view of the factual context in which the agreement was made must be considered in interpreting a contract term, with due regard to the parties' sophistication [cit.om.]. With respect to reasonable expectations, it is axiomatic that the parties to an agreement will interpret the instrument governing their relationship in accordance with existing law [cit.om.].
Madison Avenue Leasehold, LLC v. Madison Bentley Associates LLC, 30 AD3d 1, 8 (1st Dept. 2006).
There are two salient points to be made concerning "joint legal custody", the first having to do with its meaning and scope, the second having to do with the circumstances wherein it may appropriately be implemented.
"Joint custody . . . reposes in both parents a shared responsibility for and control of a child's upbringing." Braiman v. Braiman, 44 NY2d 584, 589 (1978); Matter of Argila v. Edelman, 174 AD3d 521, 523 (2d Dept. 2019). In Trapp v. Trapp, 136 AD2d 178 (1st Dept. 1988), the First Department elaborated on the concept:
In joint legal custody . . . although the children actually live with only one parent, both parents continue to share the same rights and responsibilities as they did during the marriage to participate in the decisions affecting their children. In this situation, the day-to-day child rearing decisions are made by the parent with whom the children are living, while decisions with respect to the important issues, such as religious training, education and medical care, and sometimes even less significant matters, such as discipline, diet and the choice of a summer camp, are jointly made. [cit.om.].
Trapp, supra, 136 AD2d at 180-181. See, Tippins, New York Matrimonial Law and Practice, Vol. 3, §21.2, p. 205 (2021) ("Joint custody, to work effectively, requires that the parents be able to consult and agree upon decisions of major import to the lives of their children. At a minimum, such decisions typically encompass medical, religious, and educational issues." [emphasis added]). As the Trapp Court pointedly observed, "there has been no uniform application of the term `joint custody' and no single arrangement which results when a joint award is made." Id., at 181 (quoting Dodd v. Dodd, 93 Misc 2d 641, 644-645 [Sup. Ct. NY Co. 1978]). See also, Taylor v. Taylor, 306 Md. 290, 296, 508 A.2d 964, 967 (Md. 1986) ("Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare" [emphasis added]).
A number of states have enacted statutes defining joint legal custody. Thus:
• Cal.Fam.Code §3003: "`oint legal custody' means both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child."
• Ga.Code Ann. §19-9-6(5): "`Joint legal custody' means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions."
• Idaho Code §32-717B(3): "`Joint legal custody' means a judicial determination that the parents or parties are required to share the decision-making rights, responsibilities and authority relating to the health, education and general welfare of a child or children."
• Mass.Gen.Laws.Ann. 208 §31: "`Shared legal custody', continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development."
• Mich.Comp.Laws.Ann. §722.26a(7): "As used in this section, `joint custody' means an order of the court in which one or both of the following is specified: (a) That the child shall reside alternately for specific periods with each of the parents. (b) That the parents shall share decision-making authority as to important decisions affecting the welfare of the child.
• Minn.Stat.Ann. §518.003(3)(b): "`Joint legal custody' means that both parents have equal rights and responsibilities, including the right to participate in major decisions concerning the child's upbringing, including education, health care, and religious training."
• Miss.Code.Ann. §93-5-24(5)(e): "For the purposes of this section, `joint legal custody' means that the parents or parties share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.
• Vernon's.Ann.Missouri Stat. §452.375(1)(2): "`Joint legal custody' means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority."
• N.J.S.A. §9:2-4(a): "In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order which may include (a) Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody which shall include . . . (2) provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare."
• New.Mex.Stat.Ann. §40-4-9.1(J)(3, 4): "An award of joint custody means that . . . (3) the parents shall consult with each other on major decisions involving the child before implementing those decisions; that is, neither parent shall make a decision or take action which results in a major change in the child's life until the matter has been discussed with the other parent and the parents agree." The "major changes" referenced in subdivision "4" are: changes in home city or state of residence; changes in religious denomination and religious activities; type of education, public or private; major elective medical or dental treatment; and changes in recreational activities.
• Oregon.Rev.Stat. §107.169(1): "As used in this chapter, `joint custody' means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the child's residence, education, health care and religious training."
• S.Dak.Cod.Laws §25-5-7.1: "In any custody dispute between parents, the court may order joint legal custody so that both parents retain full parental rights and responsibilities with respect to their child and so that both parents must confer on, and participate in, major decisions affecting the welfare of the child. . . . If it appears to the court to be in the best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided. Such areas of responsibility may include the child's primary physical residence, child care, education, extracurricular activities, medical and dental care, religious instruction, the child's use of motor vehicles, and any other responsibilities which the court finds unique to a particular family or in the best interest of the child. . . ."
• Vermont.Stat.Ann. §664(1)(A): "`Legal responsibility' means the rights and responsi-bilites to determine and control various matters affecting a child's welfare and upbringing other than routine daily care and control of the child. These matters include but are not limited to education, medical and dental care, religion and travel arrangements. Legal responsibility may be held solely or may be divided or shared."
• Wisc.Stat. §767.001(2): "`Legal custody' means . . . the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order . . . `Major decisions' includes, but is not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for nonemergency health care and choice of school and religion."
The foregoing caselaw and statutory authority teaches that while shared responsibility for major decisions concerning a child's religion, education and health is at the core of joint legal custody, those three categories do not exhaust the areas of a child's life that may be subject to consultation and mutual decision-making by parents under a joint custody arrangement.
In New York, mutual control over issues pertaining to religion/education/health would, as Professor Tippins notes, constitute a minimal version of joint legal custody. See also, Trapp v. Trapp, supra. However, New York courts, as Defendant aptly observes, often interpret joint legal custody more broadly, not only by taking an expansive view of what falls under the rubric of "education" or "health", but also by including, for example, such things as extracurricular activities and summer camp. See, Chamberlain v. Chamberlain, 24 AD3d 589, 593 (2d Dept. 2005); Winslow v. Winslow, 205 AD2d 620 (2d Dept. 1994); Wideman v. Wideman, 38 AD3d 1318 (4th Dept. 2007); A.F. v. T.F., 83 Misc 3d 1228(A) (Sup. Ct. Westchester Co. 2024); D.A. v. C.A., 83 Misc 3d 1214(A) (Sup. Ct. Westchester Co. 2024); N.F. v. O.F., 82 Misc 3d 1240(A) (Sup. Ct. Westchester Co. 2024); M.R. v. A.D., 32 Misc 3d 1512 (Sup. Ct. NY Co. 2011). Other states by statute codify a broad view of joint legal custody by means of the definition of major decisions which require consultation and mutual decision-making: in many cases by incorporating such all-encompassing terms as the child's "welfare" or "general welfare", in others by adding to religion/education/health such other categories as extracurricular activities, change of residence, change of recreational activities, child care, travel arrangements, and/or use of motor vehicles.
Thus, when the parties agreed to joint legal custody of their two minor children without explicit definition or limitation, they may prima facie be deemed to have intended a regime of mutual decision-making on a scale reflected in the law, as summarized above.
However, that does not conclude the analysis. In Matter of Hreat v. Hreat, 189 AD3d 1237 (2d Dept. 2020), the Second Department, quoting Braiman v. Braiman, supra, wrote:
"[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion" (Braiman v. Braiman, 44 NY2d 584, 589-590 [1978]). "However, joint custody is inappropriate where the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning the child" (Matter of Gorniok v. Zeledon-Mussio, 82 AD3d 767, 768 [2011] . . .).
Hreat, supra, 189 AD3d at 1238. See, Trapp v. Trapp, supra, 136 AD2d at 181 (same). See also, Tippins, New York Matrimonial Law and Practice, Vol. 3, §§ 21.2-21.4, pp. 204-217 (2021). Professor Tippins takes a markedly cynical view of the prospects of joint legal custody for success. He observes inter alia:
• "[Joint legal custody] was a nice `touchy-feely' ring to it and is often touted as a potential panacea to the deadly disorders which commonly emerge from a custody contest. Unfortunately, like so many altruistic alternatives postulated in the realm of domestic relations, joint custody is often more appealing on paper than it is workable in the heat of a family fray." Id., at 204.
• "Joint custody, to work effectively, requires that the parents be able to consult and agree upon decisions of major import to the lives of their children . . . This sharing of the decision-making process is at once the hallmark and the downfall of joint custody as a practical solution to many custody disputes. It is often quipped within the matrimonial bar that if the parties could get along well enough to navigate such choppy custodial waters, they would not have needed to divorce in the first place. While this aphorism may be overstated, practice experience indicates that it is a rare couple who can transcend the incidents of their own estrangement and effectuate postdivorce coparenting in a meaningful and amicable way. Id., at 205.
• Professor Tippins goes on to reference "[t]he almost infinite potential for mismanaged or maliciously managed joint custody to inflict instability and psychological harm upon the child" (id., at 211), and observes: "The Braiman decision requires mutual cooperation and parental good-faith as a precondition to joint custody. Because these are scarce and precious commodities in matrimonial disputes, the courts have not been inclined to award joint custody where it is opposed by either parent and where the requisite mutual cooperation is unlikely. The decisions occasionally observe that no matter how attractive joint custody may seem in concept, the commonly encountered lack of parental cooperation renders it impractical in application and potentially detrimental to the best interests of the children." Id., at 212-213.
Query, whether in the circumstances of this case the "preconditions" for a successful joint custody arrangement—mutual cooperation and parental good faith—are so patently lacking that, as Plaintiff urges, it would "defy logic" to find that she agreed to a custody stipulation wherein "unidentified swathes of Major Decisions" exist that are "without any mechanism for resolution"?
The Court notes in this regard that (1) Plaintiff without notice to Defendant left the marital home and removed the children to New Jersey; (2) Defendant improperly and without notice to Plaintiff accessed confidential information on her electronic devices; (3) Plaintiff was so mistrustful of Defendant that when she returned to New York from New Jersey she did not want to disclose her new address to Defendant; and (4) the parties have spent inordinate sums of money—well beyond their personal means—for attorneys fees to litigate an incontestably acrimonious matrimonial litigation. This does indeed suggest to the Court that the parties may not be able to overcome "the incidents of their own estrangement" sufficiently to succeed under a regimen of joint legal custody.
However, it proves too much—why then did Plaintiff agree to joint legal custody at all? Even the limited version of joint legal custody for which Plaintiff advocates is fraught with difficulty. Although the parties are both Catholic it has been made plain herein that disagreement on religious issues was one of the precipitating factors in the demise of their marriage—and yet they have undisputably agreed to mutual decision-making on religion for their children. Choice of schools has also been a significant bone of contention, much discussed in open court, and yet the parties have also undisputably agreed to mutual decision-making regarding the education of their children.
As for the absence of a specified mechanism for resolving issues other than religion/education/health, the Court notes that the Stipulation made in open court contained only the "bullet points" of a custody settlement "subject to a complete custody and access stipulation that we would then ask the Court to so order." The parties are, of course, obligated to negotiate the final custody and access stipulation in good faith. Some matters subject to consultation and mutual decision-making do not rise to the level where the involvement of a PC would be necessary or appropriate. The parties are free to negotiate a more informal dispute resolution mechanism for such matters, or to allocate final authority/responsibility for certain decisions to one party or the other. Moreover, the scope of the final joint custody agreement is constrained by certain relatively well-defined parameters governing its mutual decision-making component. First, as the very term denotes, it applies only to "decisions" and not, for example, to preparatory or executive measures undertaken in connection with decisions. Second, the "decisions" must rise above "day-to-day child rearing decisions", which are entrusted exclusively to "the parent with whom the children are living." See, Trapp v. Trapp, supra.
In conclusion, the Court after considering the law of joint legal custody finds nothing therein that would displace a construction of the parties' Stipulation in accord with the plain meaning of the language they employed. The Court accordingly adheres to its conclusion that by this language the parties agreed to "joint legal custody" without qualification, i.e., without delimitation (other than that inherent in the legal term itself) of the areas of the children's life to which it applies; and further, that their agreement to use a PC "solely for major decisions of health, education and religion" is naturally read not as a limitation of the issues subject to consultation and mutual decision-making, but as carving out a subset of those issues for reference to the PC when the parents reach an impasse.
While joint legal custody requires mutual cooperation on major decisions concerning the children, it also requires on the part of each parent a measure of trust in the good faith and sound judgment of the other, i.e., a recognition that despite their own differences each acts with the true good of the children at heart. The Court finds that Defendant's view of what joint legal custody requires of the parties is incorrect with respect to most of the specific actions by Plaintiff of which he complains.
• The choice of an extended summer camp or program would seem to qualify as a major decision, inasmuch as it would have a significant bearing on the child's well-being and education. Here, however, Plaintiff merely enrolled Lu. at L.'s camp for four days during her own parenting time. As a short-term recreational activity confined to Plaintiff's time with the child, that choice has none of the earmarks of a major decision and was entrusted exclusively to the Plaintiff.
• Similarly, the choice of an extended day care arrangement would seem to qualify as a major decision. In this day and age most day care facilities have and indeed tout educational programs even for two-year olds, as witness here the fact that what Plaintiff calls a day care presents itself as a "nursey school & kindergarten." However, the parties acknowledged in proceedings before this Court that Plaintiff was faced with a need to take prompt action to make arrangements for L. and Lu. upon her recent move, just before the start of the school year, back to New York. Under the circumstances, Plaintiff cannot be faulted for enrolling Lu. after providing Defendant with information concerning the alternatives.
• Taking L. on a new-school visit to get acquainted with the environment, filling out school forms, and bringing him to the doctor for a regularly scheduled physical exam are not "decisions", never mind major decisions. These are all purely executive measures entrusted to the discretion of each parent on his or her own time with the children.
• Plaintiff is free to choose her own Catholic parish, to register the children in her parish, and to take the children to Mass with her when she has them on Sunday. Defendant is likewise free to choose his own Catholic parish, to register the children in his parish, and to take the children to Mass with him when he has them on Sunday. Registration is a purely administrative matter with no impact on the children's religious upbringing. On the other hand, whether they attend Catholic school, where they attend Catholic school, where they pursue religious education, and where they receive their Sacraments are major decisions subject to consultation and mutual decision-making.
Items numbered "1(a)" and "2" of Defendant's Order to Show Cause for a declaration concerning the scope and meaning of the parties' June 25, 2024 Stipulation in open court relative to the custody of their minor children are granted to the extent indicated hereinabove. Items numbered "1(b)" and "3" of the said Order to Show Cause are denied, as they relate to matters which remain to be negotiated in good faith as part of the complete custody and access agreement contemplated by the June 25, 2024 Stipulation, the terms of which cannot—without trying custody issues to a conclusion—be imposed upon the parties by the Court.
IT IS SO ORDERED.
The foregoing constitutes the decision and order of the Court."
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