NY CHILD CUSTODY - JOINT LEGAL CUSTODY ISSUES

SCOLAVINO v. SCOLAVINO, 247 AD 3d 1078 - NY: Appellate Div., 2nd Dept. 2026:

"In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Putnam County (Victor G. Grossman, J.), dated October 15, 2024. The order, insofar as appealed from, granted those branches of the defendant's motion which were for declarations that a so-ordered stipulation of settlement dated July 8, 2024, required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning their children and that such major decisions included matters beyond the children's health, education, and religion.

Ordered that the order is affirmed insofar as appealed from, with costs.

In June 2023, the plaintiff commenced this action for a divorce and ancillary relief. The parties entered into a so-ordered stipulation of settlement dated July 8, 2024, which included, inter alia, terms relating to custody and parental access of the parties' two children. The stipulation provided, among other things, that "[t]he parties in this matter will have joint legal custody of the two minor children," that "[t]he parties are going to utilize ... a parent coordinator solely for major decisions of health, education and religion," and that the parties would "be guided by the recommendation of the [parent coordinator] in making major decisions," with the party whose position the parent coordinator supported being permitted to implement that decision, subject to the other party's right to seek a stay from a court of competent jurisdiction. The stipulation further provided that the plaintiff would have primary residential custody of the children, subject to the defendant's parental access schedule, and that each party would be entitled to make the day-to-day decisions for the children while they were in his or her care.

In September 2024, the defendant moved for declarations, among other things, that the stipulation (1) required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning the children, and (2) defined major decisions to include not only matters of the children's health, education, and religion, but also decisions relating to dental, therapeutic, and psychiatric treatment, extracurricular activities, summer camp and summer programs, day care and day care facilities, and tutoring. The plaintiff opposed the motion. In an order dated October 15, 2024, the Supreme Court, 1079*1079 inter alia, granted those branches of the defendant's motion which were for declarations that the stipulation required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning the children and that such major decisions included matters beyond the children's health, education, and religion. The plaintiff appeals.

"A stipulation of settlement is a contract subject to the principles of contract construction and interpretation" (Sabau v Sabau, 222 AD3d 1017, 1019 [2023]). "A court should interpret the stipulation in accordance with its plain and ordinary meaning, and `arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized'" (id., quoting Matter of Schiano v Hirsch, 22 AD3d 502, 502 [2005]). "`Where the stipulation is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence'" (Herman v Herman, 220 AD3d 849, 850 [2023], quoting Oakes v Oakes, 38 AD3d 865, 865 [2007]). "Joint custody reposes in both parents a shared responsibility for and control of a child's upbringing" and thus requires "the parties ... to communicate and cooperate on matters concerning the child" (Matter of Lee v Fitts, 147 AD3d 1058, 1059 [2017] [internal quotation marks omitted]).

Here, the stipulation, as placed on the record in open court, is clear and unambiguous (see Herman v Herman, 220 AD3d at 850). Read as a whole, the stipulation reflects the parties' agreement to share joint legal custody of the children and, consistent with the ordinary meaning of that term, to consult in good faith and attempt to jointly resolve all major decisions concerning the children, while specifically carving out a subset of such decisions—those relating to health, education, and religion— for nonjudicial dispute resolution through the parent coordinator (see Matter of Lee v Fitts, 147 AD3d at 1059). Issues such as dental care, summer camp, summer programs, day care, therapy, psychiatric care, and extracurricular activities fall within the umbrella of the categories in the stipulation for which nonjudicial dispute resolution applies.

Accordingly, the Supreme Court properly granted those branches of the defendant's motion which were for declarations that the stipulation required the parties to consult in good faith and jointly resolve all major decisions concerning the children and that such major decisions included matters beyond the children's health, education, and religion."

INTERPRETING AMBIGUOUS CONTRACT PROVISION IN LEASE

In this case, both parties submitted affidavits of "expert testimony" of how the contract/lease should be interpreted.

BOOSTON LLC v. 35 W. REALTY CO., LLC, 2022 NY Slip Op 32021 - NY: Supreme Court June 27, 2022:

"Discussion

"The proponent of a motion for summary judgment must establish that there are no material issues of fact in dispute and that it is entitled to summary judgment as a matter of law" (Mazurke v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]). Once a movant makes such a showing, the burden shifts to the opposing party to produce evidentiary proof sufficient to raise an issue of fact (CitiFinancial Co (DE) v McKinney, 27 AD3d 224, 226 [1st Dept 2006]).

A failure to comply with insurance requirements constitutes an incurable and material breach of a lease (Rui Qin Chen Juan v 213 West 28 LLC, 149 AD3d 539 [1st Dept 2017]). At issue here, however, is whether plaintiff complied with the insurance requirements of the Lease, which depends on the interpretation of the relevant Lease provisions.

"It is settled that the interpretation of provisions of a lease are governed by the same rules of construction applicable to other agreements... and in those instances where the intent of the parties is clear and unambiguous from the language employed on the face of the agreement, the interpretation of the document is a matter of law solely for the court" (Horwitz v 1025 Fifth Ave. Inc, 34 AD3d 248, 249 [1st Dept 2006] [internal citations omitted]). A Lease must be read as a whole to give effect to the intent of the parties as expressed therein (Hook Superx, Inc. v Ciampa N Co., 2 AD3d 587, 589 [2d Dept 2003]). Moreover, while an expert may be permitted to explain technical or scientific terms, the court will not consider expert opinion as to the meaning of contractual provisions (Good Hill Master Fund L.P. v Deutsche Bank, 146 AD3d 632, 637 [1st Dept 2017] [finding that trial court properly precluded expert opinion to assist in interpreting section of default credit swap agreements]; Colon v Rent-A-Car Center, Inc., 276 AD2d 58, 61 [1st Dept 2000] [noting that experts are not permitted "to offer opinion as to the legal obligations of parties under a contract"]).

"[W]here there is an ambiguity as to the meaning of a lease prepared by the defendant, the ambiguity should be resolved in favor of the lessee" (Campos v 68 East 86th St. Owners Corp., 117 AD3d 593, 595 [1st Dept 2014] [internal citation omitted]). Moreover, "it is well settled that no additional liability or requirement will be imposed on a tenant by interpretation unless it is clearly within the provisions of the instrument under which it is claimed" (112 West 34th St. Assocs., LLC v 112-1400 Trade Properties, LLC, 95 AD3d 529, 531 [1st Dept 2012], lv denied 20 NY3d 854 [2012] [internal citation omitted]). Furthermore, when a lease is ambiguous and susceptible to different meanings, the court may look to surrounding circumstances to determine the intent of the parties (67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245, 248 [1975]). In this regard, "the parties' course of performance under the contract is considered to be the "most persuasive evidence of the agreed intention of the parties" (Federal Ins. Co. v Americas Ins. Co., 258 AD2d 39, 44 [1st Dept 1999]).

Here, with respect to insurance coverage, the Lease states that plaintiff shall provide "[p]ublic liability coverage^[7] against claims for bodily injury or death in amount of $2,000,000.00 in a single limit or under an original policy with an umbrella" (NYSCEF #151, Lease Rider, Art. 9, at 11). It is undisputed that from 2014 to 2019, plaintiff provided general liability insurance coverage of $1,000,000 per occurrence and an aggregate coverage of $2,000,000 and named the defendant as an additional insured. The determination of whether the coverage furnished satisfies plaintiff's obligations under the Lease primarily turns on whether the term "single limit" as used in this provision means "per occurrence" as opposed to in aggregate. In this regard, the Lease does not contain any definition of "single limit," nor is it otherwise clear from other provisions of the Lease or the Rider what the term "single limit" means.

A review of New York case law indicates that "single limit," (or "combined single limit") is most often used in the context of automobile insurance where it means that the coverage limit applies to both bodily injury and property damage in contrast to "split limit," which means a separate limit for bodily injury and property damage (Prudential Prop & Cas. Co. v Szeli, 83 NY2d 681, 684 [1994]; Jones v Peerless, 281 AD2d 888, 888 [4th Dept 2001]). Thus, in this context, "single limit" refers to the type of losses covered by insurance as opposed to whether the insurance coverage is on per occurrence basis or for the aggregate of occurrences during a policy period. Moreover, in the general liability context, the term "single limit" has been used together with "per occurrence," which indicates that contrary to the defendant's position, "single limit" is not synonymous with "per occurrence" (see e.g. Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412, 416 [2006] [lease provision obligated tenant, "at its own expense, to maintain a comprehensive general liability insurance policy naming [defendant] as an additional insured with coverage to be no less than $5 million `combined single limit per occurrence for bodily injury and property damage liability"] [emphasis added]). And, that the provision permits an alternative for coverage "under an original policy with an umbrella,"^[8] does not support the defendant's interpretation. Thus, at the very least, the Lease's insurance provision is ambiguous as to whether the $2,000,000 coverage requirement refers to per occurrence or aggregate coverage.

To the extent the insurance requirements of the Lease are ambiguous as to whether $2,000,000 means aggregate or per occurrence, the provision must be interpreted in favor of finding that plaintiff complied with the insurance provision of the Lease by providing coverage of $1,000,000 per occurrence and $2,000,000 in aggregate coverage. And, a contrary interpretation which would require plaintiff to provide coverage of $2,000,000 per occurrence would impermissibly add to plaintiff's obligations under the Lease that were not clearly required by its terms (see 151 W. Assoc. v Printsiples Fabric Corp., 61 NY2d 732, 734 [1984] [affirming court order denying landlord a judgment of ejectment based on the "uncertainty" regarding whether an agreement involving tenant's creditors fell within the meaning of term "arrangement" in the lease's bankruptcy clause]; 67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d at 249 [construing ambiguous article of lease in lessee's favor]).

And, significantly, the court's interpretation is consistent with the parties' intent based on their conduct under the Lease in that plaintiff provided insurance coverage in the amount of $1,000,000 per occurrence and $2,000,000 aggregate for five years before defendant objected (see Federal Ins. Co. v Americas Ins. Co., 258 AD2d at 44 ["Generally speaking, the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence"]; Kalmon Dolgin Co. v Walnut Lanes, Inc., 27 AD2d 843, 843 [2d Dept 1967] [when record indicates that tenant and its predecessor paid fire insurance premiums for seven years without objection "construction of the lease [consistent with this payment] ... is entitled to great weight because it was made by the parties themselves"]).

Next, to the extent expert evidence may be considered in light of the ambiguity of the contract, the opinion of the defendant's expert is insufficient to raise a triable issue of fact as to the meaning of "single limit" since his opinion is conclusory and unsupported by any authority (see Blonder & Co. Inc v Citibank, N.A., 28 AD2d 180, 183 [1st Dept 2006] [the conclusory affidavit of plaintiff's expert was insufficient to raise an issue of fact as to the interpretation of a letter of credit]).

Accordingly, the defendant's motion for summary judgment is denied except that the second cause of action for a Yellowstone injunction is denied as moot, and plaintiffs cross motion for summary judgment is granted on the first cause of action to the extent of declaring that that plaintiff is not in violation of the insurance requirements of the Lease and that defendant is enjoined from terminating plaintiffs tenancy on this ground."

DIVORCE AND ORAL STIPULATIONS AND PENSIONS AND ANNUITIES

An annuity is not a pension but both are retirement assets so the proper language should first refer to both (and any other retirement plan or accounts) as "Retirement Assets".

DJ v. CR, 2022 NY Slip Op 50420 - NY: Nass. Co. Supreme Court 2022: 

"JOSEPH H. LORINTZ, J.

The Plaintiff moves by Notice of Motion (Mot. Seq. 07) seeking an Order:

A. Rejecting the Domestic Relations Order submitted by the Defendant to effectuate distribution of the Plaintiff's Retirement Annuity with prejudice;

B. Sanctioning the Defendant's counsel for her repeated failed attempts to set aside the parties' Stipulation of Settlement after the parties' divorce action was settled, the parties were allocuted on the record, and the Findings of Fact and Conclusions of Law and Judgment of Divorce were signed by this Court;

C. Awarding the Plaintiff counsel fees in the amount of $5,000.00; and

D. For such other and further relief as this Court deems just and proper.

The Defendant cross moves by Notice of Cross Motion (Mot. Seq. 08) seeking an Order:

A. Modifying the parties' Stipulation of Settlement dated January 25, 2019 by declaring that the word "pension" refers to all retirement accounts owned by the parties, or, in the alternative, declaring that the word "pension" refers to the parties' four retirement accounts which were evaluated and exchanged during the divorce proceedings;

B. Awarding the Defendant reasonable attorney's fees and the costs for bringing this motion; and

C. Granting such other and further relief as this Court may deem just and proper.

BACKGROUND

The Plaintiff and the Defendant (the "parties") were married on June 4, 2002. There are no children born of the marriage. During the marriage the parties accrued the following four retirement assets: (1) the Plaintiff's Voluntary Retirement Savings Plan c/o XXXXX (the "Plaintiff's Annuity"); (2) the Plaintiff's pension plan with XXXXX (the "Plaintiff's Pension"); (3) the Defendant's Union Annuity Trust Fund (the "Defendant's Annuity"); and (4) the Defendant's Union Pension (the Defendant's Pension"). The Plaintiff commenced an action for divorce on XXX, XX, 2015.

Pursuant to a So-Ordered Stipulation to Refer Case dated October 2, 2018 (Lorintz, J.), the trial of this matter was referred to the Supervising Judge of the Matrimonial Parts, Nassau County, New York, for referral to a Judicial Hearing Officer or Court Attorney Referee. The trial of this matrimonial matter commenced before Referee Marie McCormack in XXXXX, 2018. On February 26, 2019, the parties entered into an oral stipulation resolving all ancillary issues, the terms of which were spread on the record (the "Stipulation"). Therein, the parties agreed that their "pension shall be split equally pursuant to the Majauskas formula and each party will be responsible for 50 percent of the costs." They further agreed that each party "shall be [the] sole owner of all bank accounts currently in their name, be it personal or business." The parties further agreed, inter alia, that the Plaintiff would purchase the Defendant's ownership interest in the marital residence for $250,000.00. During their allocution, Referee McCormack asked each party to affirm their understanding that the Stipulation was a "full and final settlement of this matter resolving all issues in this matrimonial action." Both parties affirmed, and the court held that they entered into the Stipulation "freely and voluntarily."

In or about July 2019, the Plaintiff's counsel filed on notice to the Defendant's counsel, a Proposed Findings of Fact and Conclusions of Law and Proposed Judgment of Divorce, together with other papers necessary to effectuate the parties' divorce. The "Fifteenth" Paragraph of said Proposed Findings of Fact stated, "the wife's pension and Defendant's pension shall both be split in accordance with the Majauskas formula and each party shall be responsible for half the cost." The fifth ordered paragraph in the Proposed Judgment of Divorce further stated that "the Party's pensions shall be split equally pursuant to the Majauskas formula and each party shall be responsible for 50% of the costs."

On or about August 16, 2019, the Defendant filed an Order to Show Cause (Mot Seq. 05) seeking, inter alia, an Order restoring this matter to the Court's Calendar "so that all assets that have not been equitably distributed can be equitably distributed", holding the Plaintiff in contempt for violating the automatic orders, sanctioning the Plaintiff and her counsel, and awarding the Defendant counsel fees. This Court declined to sign Motion Seq. 05 on August 16, 2019. On or about August 27, 2019, the Defendant's counsel filed on notice to the Plaintiff's counsel, a Counter Proposed Judgment of Divorce, together with other papers necessary to effectuate the parties' divorce. The third ordered paragraph of the Counter Proposed Judgment provided for the distribution of both parties' annuities and pensions.

The parties were divorced by a Judgment of Divorce dated August 30, 2019 (McCormack, Referee). Referee McCormack signed the Judgement of Divorce submitted by the Plaintiff's counsel. The "phrase "Pursuant to Stipulation" was inserted at the beginning of the Fifteenth Ordered Paragraph. On or about July 21, 2021, the Defendant's counsel filed a Proposed Qualified Domestic Relations Order to distribute the Plaintiff's Annuity (the "QDRO"). The Plaintiff's counsel filed two Affirmations objecting to the QDRO before filing the instant Notice of Motion (Mot. Seq, 07) on December 24, 2021. The Defendant cross moved by Notice of Cross-Motion (Mot. Seq. 08) on January 21, 2022. The Plaintiff filed responsive papers on or about February 23, 2022, and the Defendant filed a Reply on March 20, 2022. Motion Seqs. 07 and 08 were fully submitted on May 9, 2022.

DISCUSSION

The merit of both parties' applications hinge on whether the parties' retirement annuities must be distributed pursuant to the Stipulation and, if the answer is no, whether the Stipulation must be modified or vacated for not explicitly addressing the same.

"Open court stipulations of settlement are judicially favored and should not lightly be set aside." Hannigan v Hannigan, 50 AD3d 957 (2d Dept 2008). Parties are free to enter into agreements "that not only bind them, but which the courts are bound to enforce." Etzion v Etzion, 84 AD3d 1015 (2nd Dept. 2011) (quoting Greve v Aetna Live-Stock Ins. Co., 30 NYS 668, 670 [1894]). An oral stipulation of settlement spread on the record is "binding and strictly enforceable and shall not be disturbed absent a showing of one of the traditional grounds for vacatur, e.g., fraud, duress, mistake or overreaching." M.P. v L.P., 2006 NY Misc. LEXIS 4017 (Sup Ct, Queens County Mar. 10, 2006) (citing Harrington v Harrington, 103 AD2d 356 [2d Dept 1984]); see also CPLR § 2104. Such stipulations are contracts which are subject to the principles of contract law. Petrovovich v Obradovic, 40 AD3d 1063 (2d Dept 2007); Simmons v Simmons, 305 AD2d 661 (2d Dept 2003).

Where an agreement is clear and unambiguous on its face, the parties' intent must be construed within the four corners of the agreement and not from extrinsic evidence." Khorshad v Khorshad, 121 AD3d 857 (2nd Dept. 2014). "Courts should construe stipulations made in open court in accordance with the purpose of the agreement and the parties' intent by examining the entire record as a whole. Hannigan v Hannigan, 50 AD3d 957 (2d Dept 2008). "However, a court should not, under the guise of interpretation, make a new contract for the parties." Sklerov v Sklerov, 231 AD2d 622 (2d Dept 1996). A court cannot enforce a contract unless it can determine what the parties have agreed to. 166 Mamaroneck Ave. Corp. v. 151 East Post Rd. Corp., 78 NY2d 88 (1991). If an agreement is not reasonably certain in its terms, there can be no legally enforceable contract. Id citing Joseph Martin, Jr., supra.

Here, the Plaintiff argues that the QDRO submitted to the court by the Defendant's counsel should be rejected, as the parties waived distribution of their annuities, and agreed that only their pensions would be divided. She claims their agreement is evidenced by the clear language in the Stipulation, wherein they explicitly stated that their pensions would be distributed by a QDRO pursuant to the Majauskas formula, and by the absence of a similar clause in reference to their annuities. The Defendant claims that the parties negotiated and agreed to distribute all their retirement assets and, in entering into the Stipulation, he believed the term "pension" included all four of their accounts. He further claims that the Plaintiff and her attorney shared his understanding. The Defendant argues that the parties never contemplated waiving their interest in each other's retirement assets, as evidenced by the absence of an explicit waiver in the Stipulation. The Defendant's counsel further argues that "[i]t is well settled law in New York that waivers are legally insufficient to enforce a waiver upon a retirement account, in the context of a divorce stipulation, and New York routinely requires waivers of non-defined benefit plans such as 401k, to be specific, and the plan must be identified." In support of this purported legal principle, the Defendant cites to three cases: Eredics v Chase Manhattan Bank, N.A., 100 NY2d 106 (2003); Smith v Pathmark Stores, Inc., 57 AD3d 759 (2d Dept 2008); and Matter of Christie, 152 AD3d 765 (2d Dept 2017).

In Eredics v Chase Manhattan Bank, N.A., supra, the court held that a separation agreement did not constitute a waiver of an ex-spouse's beneficiary interest in Totten Trust accounts owned by her deceased ex-husband. The court reasoned that the language cited by the movant was not sufficiently explicit to constitute a waiver pursuant to EPTL § 7-1.9, the Totten Trusts were not specifically referenced in the agreement, and the parties agreed that accounts not specifically mentioned in the agreement were already "distributed equitably and to the mutual satisfaction of the parties, prior to the execution of this agreement." Similarly, in Smith v Pathmark Stores, Inc., supra, the court held that a former spouse had not waived his beneficiary interest in his decedent-wife's 401k, as the stipulation executed by the parties did not specifically reference the account, and the general release language contained therein did not constitute a valid waiver.

Both cases are clearly distinguishable from the instant matter, as they were actions in surrogate's court wherein surviving ex-spouses, who were still listed as beneficiaries of their deceased ex-spouse's retirement accounts, sought to collect a beneficiary interest. The relevant issue in both cases was whether agreements executed by the parties constituted valid waivers of their beneficiary interests. Though the Defendant argues otherwise, neither court held that the same specificity was required to waive distribution of a retirement asset in the context of a divorce proceeding.

The Defendant further cites to Matter of Christie, supra, wherein the court held that a stipulation of settlement that was incorporated into a judgment of divorce, wherein one party agreed to accept $60,000.00 in exchange for her interest in the other party's "retirement/pension and/or bank accounts", constituted a valid waiver of the surviving ex-spouse's beneficiary interest in the decedent's pension plan. Even if the facts of this case were analogous to those of the instant matter, which they are clearly not, the court's ruling would still belie, or at least qualify, the legal principle argued by the Defendant.

The parties, and this Court, need not attempt to glean precedential wisdom from cases with dissimilar facts, as there are several published decisions which directly address the issues herein. Indeed, the facts in Hannigan v. Hannigan, 50 AD3d 957 (2d Dept 2008) and W.T, v. E.T., 28 N.Y.S.3d 651 (Sup. Ct. Cayuga Cty. 2016) are strikingly similar to the instant matter.

In Hannigan, the parties resolved their matrimonial action by an oral stipulation of settlement in open court. While spreading the terms of the parties' agreement on the record, the parties' counsel failed to address the Defendant's 401-k or pension plan. However, the parties' Judgment of Divorce included a decretal paragraph distributing both retirement assets. On appeal, the Second Department, Appellate Division vacated the Judgment and held that the Plaintiff was not entitled to distribution of the Defendant's retirement assets. The court reasoned, in part, that both parties were represented by counsel, the terms of the stipulation were clear and unambiguous, and, therefore, the absence of a provision distributing retirement assets evinced the parties' intent not to distribute them. The court held that such intent was confirmed by the Plaintiff's counsel's representation that there was nothing left to place on the record and by the subsequent voir dire of the parties.

In W.T. v. E.T., supra, in spreading the terms of the parties' oral stipulation of settlement on the record, the wife's attorney stated that the husband had "a pension, a true pension with his primary employer" and that he would provide information necessary for the wife to obtain a QDRO. No agreement regarding the husband's second pension was placed on the record. The parties agreed that their oral stipulation resolved all contested issues and would be incorporated into a divorce judgment. Eighteen months after the Judgment of Divorce was entered, the wife's attorney indicated her intent to file a QDRO to distribute the second pension. The court held that since both parties and their attorneys knew the husband had two pensions for at least six months before the case was settled, their failure to mention the second pension while spreading the terms of their agreement on the record precluded distribution thereof. Similarly, in Dykstra v Dykstra, 211 AD2d 745 (2d Dept 1995) the court declined to reopen a stipulation of settlement based upon one parties' claim that distribution of an annuity was inadvertently omitted.

Here, as in W.T. v. E.T., supra and Hannigan, supra, both parties were represented by counsel, all retirement assets were disclosed and valued well before the settlement was entered into, and the parties were allocuted on the record. Crucially, both parties affirmed that the Stipulation was a "full and final settlement of this matter resolving all issues in this matrimonial action." While the Defendant argues that there was a mutual mistake of fact as to the definition of the term "pension", he offers nothing more than conclusory allegations to support his claim that the Plaintiff shared his understanding. See, for e.g., McClorey v McClorey, 153 AD3d 1252 (2d Dept 2017) (denying a motion to vacate a stipulation for the movant's failure to support allegations of mutual mistake with "record evidence"). Even if the Defendant and his attorney believed the word "pension" meant something other than its colloquial definition, such error was at best a unilateral mistake. To obtain reformation based on a unilateral mistake, a movant must show that the mistake was induced by the other party's fraudulent representation. See Kadish Pharm., Inc. v Blue Cross & Blue Shield, Inc., 114 AD2d 439 (2d Dept 1985). Here, the Defendant failed to establish that his and his attorney's misunderstanding of the term "pension" was induced by the Plaintiff's fraudulent conduct.

"In the context of a matrimonial action, the Court of Appeals has recognized that a final judgment of divorce settles the parties' rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated." Spencer v Spencer, 159 AD3d 174 (2d Dept 2018) (citing Nicodemus v. Nicodemus, 124 AD3d 849, 851, 3 NYS3d 64 [2015]). Here, the parties agreed that the Stipulation was a "full and final settlement" and resolved all issues. The terms of their agreement were clear and unambiguous, both parties were represented by counsel, and, during their allocutions, the parties indicated that they were satisfied with their representation. The Defendant has failed to prove the existence of fraud, duress, unconscionability, or mutual mistake, and has failed to establish that any unilateral mistake was induced by the Plaintiff's fraudulent representations. Considering all the facts and circumstances discussed herein, the Defendant's conclusory allegations are insufficient to overcome this State's strong public policy of ensuring finality in divorce proceedings.

Accordingly, all branches of the Defendant's application (Mot. Seq. 08) are DENIED. The branch of the Plaintiff's application (Mot. Seq. 07) seeking an Order rejecting the QDRO filed by the Defendant seeking to distribute her Annuity is GRANTED; and it is hereby

ORDERED, that the Proposed Domestic Relations Order submitted by the Defendant to effectuate distribution of the Plaintiff's Annuity is dismissed with prejudice.

The Plaintiff seeks an Order directing the Defendant to pay her $5,000.00 as and for the counsel fees she incurred during the instant motion practice. She further seeks an Order sanctioning the Defendant's counsel pursuant to 22 NYCRR 130-1.1. The Plaintiff, and her counsel, claim that the Defendant previously sought the same relief requested herein in post-settlement discussions with Referee McCormack, a previously filed Order to Show Cause, and a proposed QDRO which was obtained ex parte and filed without notice of settlement. She argues that, though they were unsuccessful in all prior attempts and knew, or should have known, that this motion would not succeed, the Defendant and her counsel chose to file Motion Seq. 08, and ought to pay the legal fees she incurred as a result. In opposition to the Plaintiff's prayer for counsel fees and sanctions, the Defendant appears to rest on the merits of his application (Mot. Seq. 08).

Conduct during litigation is frivolous and subject to sanctions and/or counsel fee awards when it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another, or it asserts material factual statements that are false Wecker v. D'Ambrosio, 6 AD3d 452 (2nd Dep't 2004) citing 22 NYCRR 130-1.1. At the very least, the movant must have a good faith basis to assert their claim. Id citing Kamruddin v. Desmond, 293 AD2d 714 (2nd Dep't 2002).

Here, the Defendant offers nothing more than conclusory allegations in support of his claim of mutual mistake, and he fails to establish that his claimed unilateral mistake was induced by the Plaintiff's fraudulent conduct. Furthermore, the Defendant's counsel persistently and incorrectly argues that parties cannot waive equitable distribution of retirement assets unless the waiver is in writing and explicitly identifies each asset being waived. Though not entirely clear, it seems that the Defendant's counsel is misapplying the rules governing waivers of survivor benefits, pursuant to ERISA. See, for e.g., Edmonds v Edmonds, 184 Misc 2d 928 (Sup Ct, Onondaga County 2000). Thus, this Court agrees that the Defendant's application was without merit in law or fact and, therefore, the Plaintiff is entitled to a counsel fee award. On the other hand, the Plaintiff failed to establish, to this Court's satisfaction, that the Defendant and his counsel were operating in bad faith, and, though an explicit waiver was not required with respect to the parties' retirement assets, given the length and nature of the parties' matrimonial litigation and that less-valuable assets were specifically addressed in the Stipulation, failing to specifically address the parties' annuities was imprudent and, therefore, both parties are partially responsible for the instant motion practice.

Accordingly, the branch of the Plaintiff's application seeking sanctions is DENIED. The branch of her application seeking an Order directing the Defendant to pay counsel fees pursuant to 22 NYCRR 130.1 is GRANTED to the extent that it is hereby

ORDERED, that the Defendant shall pay to the Plaintiff $2,500.00 within thirty (30) days of the service of this Decision and Order with notice of entry; and it is further

ORDERED, that if the Defendant fails to pay the counsel fees awarded herein within the time directed above, the Plaintiff is awarded a money judgment in said amount, with a credit for any partial payment made by the Defendant. Upon such non-compliance, the Plaintiff may file an affidavit of non-compliance with the Nassau County Clerk, along with a copy of this Decision and Order, and may then enter judgment without further proceedings.

Any relief sought herein and not specifically ruled upon is denied.

This constitutes the Decision and Order of this Court."

CONTRACT CONSTRUCTION WITH AN "AMBIGUOUS" LLC OPERATING AGREEMENT

YMSF Family P'ship LP v. Beitel, Date filed: 2022-01-25, Court: Supreme Court, Kings, Judge: Justice Leon Ruchelsman, Case Number: 514791/17:

"The plaintiff has moved seeking summary judgement pursuant to CPLR §3212. The defendant opposes the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments' this court now makes the following determination.

In September 2013 the plaintiff and the defendants entered into an operating agreement whereby the plaintiff paid $80.0, 000 "towards purchase of equity interest" and was given a 49.9% share In an entity called 5309, 18^th Ave Besatya LLC. The defendant Beitel maintained a 50.1% share of the entity. Thereafter the plaintiff sought access to the. entity's books and records and such request was denied numerous times. On July 31., 2017 the plaintiff brought this action, seeking, a declaratory judgement that they are a member of the entity and have all rights, of membership. The plaintiff has now moved seeking summary judgement arguing that there are no questions of fact the operating agreement has conferred ownership interests upon the plaintiff and that pursuant to those interests they are entitled to the books and records. The defendants have opposed the motion arguing that the operating agreement did not intend to provide any ownership, interest to the plaintiff. Rather, the transaction was. only one. of a loan provided: by the: plaintiff and the operating agreement was worded in that, fashion to avoid, the appearance of an interest bearing lean prohibited by Jewish law. The defendants assert that the principles of the plaintiff as well as the defendant are all Orthodox Jews and purposefully and. intentionally crafted the transaction as an Operating agreement as such to avoid the appearance of a prohibited interest bearing loan. Therefore, the defendants argue there are surely questions of fact whether the plaintiff is an owner of. the entity and consequently summary, judgement must be denied.

Conclusions of Law

It is well settled that an agreement that is clear and unambiguous on its face shall be enforced according to its plain terms (Greenfield v. Philies Records Inc. 98 N.Y.2d 562, 750 N.Y.S.2d 565 [2002]). Extrinsic evidence demonstrating the true intent of the parties is generally inadmissible (Pentacon LLC v. 422 Knickerbocker LLC, 165A.D.3d 829, 86 N.Y.2d 177 [2d Dept., 2018]}. Such extrinsic evidence may be admissible if an ambiguity exists and whether such ambiguity exists is a. question of law (MRT Mew York, LLC. Brown, 167 A.D.3d 764, 89 N.Y.S.3d 695 [2d Dept., 2018]).

Further, extrinsic evidence may not be submitted to create an ambiguity (Brad H. v. City of New York, 17 N.Y.3d 180, 921 N.Y.S.2d 221 [2017]). A contract will be considered ambiguous if susceptible to more than one interpretation (id)..

The terms Of the operating agreement are clear and are not ambiguous in any manner. The operating agreement provides that the purpose of the entity is engage "in any Lawful act or activity for which limited liability companies may be formed under the LLCL and engaging in all activities- necessary or incidental to the foregoing" (see. Operating. Agreement, ¶2). The agreement further provides that "the Membership interests and contributions of the Members as of the date hereof ere as follows: Binyamin Beitel: 50, 1%., YMSF Family Partnership L. P. 49.9% $800, 000 (paid towards purchase of entity interest)" (see., Operating Agreement, ¶4), In addition the agreement provides that, "the Members shall have, the power to do, any and all acts necessary or convenient to or for the furtherance of the purposes described herein..” (see. Operating Agreement., ¶6)... These provisions plainly and unmistakably afford the plaintiff with membership interests in the entity. The defendants argue that an unproduced document evidencing a loan exists which undermines the. .unambiguous terms of the operating agreement... Specifically, the defendants assert that a heter iska, a religious document utilized to circumvent the Jewish prohibition against interest by treating all loans as^: partnerships or business ventures was entered into between the parties (see. In re Venture Mortgage Fund: L, P, , 245 BR 460 [S.D.N.Y. 2000]) and thus the operating agreement merely evidenced a loan without any membership interests on the part of the. plaintiff. However., that argument really seeks a determination that despite the unambiguous language of the operating agreement such ambiguity exists and the ambiguity is resolved by completely altering, the terms of the operating agreement. Thus, as noted without any ambiguity the plain meaning of the contract terms control (Goetz y. Trinidad, 168 A.D.3d 688, 91 N.Y.S.3d 513 [2d Dept., 2019]). This is especially true in this case where there is no, heter is.ka agreement presented.

Further, the affidavit of Rabbi Avrohom Moshe Lewanoni who stated, that he was consulted by the plaintiff because the plaintiff "wanted to loan Binyamin Beitel money" (see; Affirmation of Rabbi Lewanoni., January 20, 2020., ¶13) does hot raise any questions of fact. First, even if true such a consultation occurred it has no bearing on the actual operating agreement signed in 2013 which is clearly a membership agreement. Further., in a subsequent affirmation dated;February 18, 2020 Rabbi Lewanoni explained that he never consulted with the plaintiff concerning the specific property that is the subject of the operating agreement (see, Affirmation of Rabbi Lewanoni., February 18, 2020, 16). Thus, the second affidavit which may appropriately be considered in Reply surely diminished "the limited value of the first- affidavit. In any event,, even if the second affidavit would not be considered, the first affidavit does not create any question of fact because the operating agreement contains no ambiguity that would permit such extrinsic evidence.

Moreover, it is not proper to utilize parol evidence in the religious context to establish the substance of a secular agreement (see. In re Marriage of Shaban, 88 Cal App. 4th 398, 105 Cal.Rptr2d. 863 [Court of Appeal, 4^th District, Division 3, California 2001]).

Lastly, there is no merit to the argument any buy-back provision further supports the argument the operating agreement is really a loan since in any event the defendants failed to exercise the buy-back provision in the requisite time frame: further supporting the conclusion the plaintiff is a member of the entity.

For these reasons the motion is not premature. Further discovery or depositions will have no impact and cannot alter the plain language of the operating agreement. Similarly, the defendant's counterclaims are; all dismissed.

Thus, based on the foregoing the motion seeking summary judgement on the three causes of action of the complaint is granted.

So ordered."

A PROPERTY DISPUTE OVER AN EASEMENT RESOLVED THROUGH CONTRACT INTREPRETATION

Friends of Wickers Cr. Archeological Site, Inc. v Landing on the Water at Dobbs Ferry Homeowners Assn., Inc., 2021 NY Slip Op 05548, Decided on October 13, 2021, Appellate Division, Second Department:

"In November 2000, the plaintiff entered into a stipulation with the defendant's predecessor in interest, Summit Landing, LLC (hereinafter Summit), to settle an action commenced by Summit against, among others, the plaintiff. Pursuant to the stipulation, Summit agreed to provide permanent public access to certain tracts of land, which it then owned. In this action, the plaintiff alleges that the defendant breached the terms of the stipulation by locking a gate on a footbridge on the subject property, blocking access to a parcel of real property located on the Hudson River that is part of a walking easement in favor of the Village of Dobbs Ferry.

The Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint and, in effect, declaring that the stipulation does not prevent the defendant from locking a gate on the footbridge during daylight hours and otherwise unreasonably blocking public access across the footbridge, and properly granted the plaintiff's motion for summary [*2]judgment on the complaint and, in effect, declaring that the stipulation prevents the defendant from locking a gate on the footbridge during daylight hours and otherwise unreasonably blocking public access across the footbridge. The plaintiff established its prima facie entitlement to judgment as a matter of law by demonstrating that the defendant's actions breached the stipulation, which required the defendant to maintain the footbridge in furtherance of the walking easement.

Although the stipulation contemplated the creation of a walking easement in favor of the general public, and not only the residents of the Village, that did not relieve the defendant of the obligation to maintain the footbridge in furtherance of the easement. A contract should be construed so as to give full meaning and effect to its material provisions (see Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 46; McQuade v McQuade, 67 AD3d 867, 869). A reading of the contract should not render any portion meaningless, and the contract should be read as a whole, with every part interpreted with reference to the whole. If possible, the contract will be interpreted as to give effect to its general purpose (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324-325; Wilson v PBM, LLC, 193 AD3d 22).

Here, to interpret the provision regarding the walking easement as being applicable to the defendant only if the walking easement created was in favor of the general public would render that provision meaningless. Such an interpretation would mean that the defendant was not required to provide access over the footbridge even to residents of the Village, who are undisputedly entitled to access the waterfront parcel pursuant to the terms of the easement. That provision of the stipulation is interpreted to give effect to its general purpose of ensuring that the defendant provides access to the easement area via the footbridge, as part of the settlement of the litigation between Summit and the plaintiff. The Supreme Court correctly determined that the defendant's actions in locking the gate on the footbridge, preventing Village residents from accessing the waterfront parcel, were in violation of the defendant's acknowledged obligation to maintain the footbridge in furtherance of the walking easement.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the stipulation prevents the defendant from locking a gate on the footbridge during daylight hours and otherwise unreasonably blocking public access across the footbridge (see Lanza v Wagner, 11 NY3d 317, 334)."

CONTRACTS - PAST CONSIDERATION

Something to keep in mind when drafting agreements and settlements.

Cooper v. Cooper , 19-CV-3025 (NGG) (ST), (E.D.N.Y. June 26, 2020):

I. BACKGROUND

The following factual summary is drawn from the facts alleged in the complaint, which the court generally accepts as true. See N.Y. Pet Welfare Ass'n v. City of New York, 850 F.3d 79, 86 (2d Cir. 2017). Plaintiff and Defendant are sisters. (Compl. ¶ 11.) Prior to October 2014, Plaintiff loaned money to Defendant on several occasions, in various amounts; by October 15, 2014 Plaintiff had loaned Defendant $414,300, none of which Defendant had repaid. (Id. ¶¶ 12-13.) After the money was loaned, Defendant agreed to sign a writing memorializing the loans Plaintiff made to Defendant and her obligation to repay those loans. (Id. ¶ 14.) On January 4, 2015, Plaintiff's husband emailed a draft loan agreement to Defendant on behalf of Plaintiff. (Id. ¶ 15.) Defendant obtained legal advice and spoke with an accountant on the contents of the draft agreement. (Id. ¶ 16.) Shortly thereafter, on January 19, 2015, Defendant sent Plaintiff and her husband a revised agreement. (Id. ¶ 17.) On or about May 1, 2015, Plaintiff and Defendant executed the Agreement, dated as of January 19, 2015. (Id. ¶ 18; see also Agreement (Dkt. 1-3).) The opening recital of the Agreement provides: "IN CONSIDERATION OF Lender loaning certain monies to Borrower, and Borrower repaying those monies to Lender, both parties agree to keep, perform, and fulfill the following promises and conditions." (Agreement at 1) The first paragraph of the Agreement states: "Lender promises to loan the principal amount ('the loan') of four hundred fourteen thousand, three hundred dollars ($414,300) to Borrower, and Borrower promises to repay this principal amount and all accrued interest." (Id. ¶ 1) Per the Agreement, Defendant agreed to pay interest on the Loan at the rate of 0.38% per year. (Id.) The Loan provided for annual interest-only payments to be made on January 19 of 2016 and 2017, with a maturity date of January 19, 2018. (Id. ¶¶ 2-3.) The Agreement contemplates that Defendant would repay using money received from her father's estate, and provides that the term would be extended in three-year increments if Defendant had not received sufficient funds to repay the loan as of the maturity date. (Id. ¶ 5.) Defendant made the first annual interest payment on or about January 19, 2016. (Compl. ¶ 27.) However, Defendant did not make the second interest payment the following year nor did she repay the loan on the maturity date. (Id. ¶¶ 29-30, 33.) On or about June 27, 2018, Plaintiff's husband notified Defendant that she was in default and offered her an opportunity to cure by making a catch-up payment. (Id. ¶ 31.) On August 9, 2018, Defendant made a partial interest payment. (Id. ¶ 32.)

When quoting cases, unless otherwise noted, all citations and internal quotation marks are omitted and all alterations are adopted.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), the Complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "In determining the adequacy of the complaint, the court may consider any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint." Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005).

III. DISCUSSION

Defendant argues that the Agreement is unenforceable because the facts indicate that it was founded on past consideration. (See generally Mem. in Supp. of Mot. ("Mem.") (Dkt. 13-3).) Defendant further contends that the Agreement does not fall within New York General Obligations Law § 5-1105's exception to the common-law rule that past consideration cannot be used to create an enforceable obligation because it uses exclusively forward-looking language and thus can only be read as referencing a future loan. For the reasons that follow, the court agrees and, accordingly, grants Defendant's motion. Plaintiff's complaint effectively concedes that the Agreement is founded on past consideration. (Compl. ¶¶ 13-14.) Under New York law, "[c]onsideration is simply a bargained-for exchange of promises or performance." Ferguson v. Lion Holding, Inc., 312 F. Supp. 2d 484, 494 (S.D.N.Y. 2004) (citing Restatement (Second) of Contracts § 71 (1981)). "Generally, past consideration is no consideration and cannot support an agreement because the detriment did not induce the promise." Greenberg v. Greenberg, 646 F. App'x 31, 32 (2d Cir. 2016) (summary order) (applying New York law). Section 5-1105 of New York General Obligations Law, however, provides an exception to this common-law rule. Specifically, the law provides:

A promise in writing and signed by the Promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed.

N.Y. Gen. Obl. L. § 5-1105. "To qualify for the exception [provided in § 5-1105], the description of the consideration must not be vague or imprecise, nor may extrinsic evidence be assisted to in understanding the consideration." Korff v. Corbett, 65 N.Y.S.3d 498, 502 (1st Dep't 2017). As such, courts applying § 5-1105 have enforced agreements founded on past consideration only when the past consideration is clear from the face of the agreement. Cf. Greenberg, 646 F. App'x at 31-32 (written agreement signed by Defendant promising to pay $200,000 as a gift to Plaintiff for the "many gifts and many loans" Plaintiff has given Defendant through the years invalid under Section 5-1101 consideration). Here, Plaintiff argues the past consideration is expressed within the writing, specifically, the language in the recital that Defendant's repayment obligation was undertaken "IN CONSIDERATION OF [Plaintiff] lending certain monies to [Defendant]" and the specific delineation of the amount and terms of the loan in the first paragraph of the Agreement. (See generally Opp.) Plaintiff points to numerous cases where similar loan obligations have been held enforceable notwithstanding the fact that the actual loan was made prior to the execution of the agreement at issue. See, e.g., Gruberg v. McCarthy, 735 N.Y.S. 2d 638, 915-16 (3d Dep't 2001) (agreement to assume responsibility "for debts incurred on" specific dates prior to execution of agreement enforceable under § 5-1105); In re Thomson McKinnon Sec. Inc., 139 B.R. 267, 271, 278 (S.D.N.Y. 1992) (note promising repayment "[i]n consideration for a loan ... in the amount of [$150,000]" enforceable notwithstanding fact that funds had been advanced prior to execution of note). Plaintiff also notes that courts have held that § 5-1105 does not require the use of "talismanic words" for a promise to be given effect, so long as "the writing refers to the consideration ... and couples that recitation with the promise to pay." In re Levine, 32 B.R. 742, 745 (S.D.N.Y 1983). All of these things may be true, but they do not save Plaintiff's claim. The Agreement, by its terms, expressly contemplates a future loan; the recital states that Defendant undertook her obligation in consideration of Plaintiff "loaning certain monies" to Defendant, while the operative language of the agreement provides that Plaintiff "promises to lend" money to Defendant, not that Plaintiff had already loaned such money to Defendant. While, as Plaintiff argues, at least one court has noted that § 5-1105 does not per se require an "unequivocal[] indicat[ion] that the consideration was past consideration" and opined that such a requirement would be "unsuitably narrow," Levine, 32 B.R. 745, dicta in 37-year-old district court decisions are not binding on this court. Moreover, the court is unaware of any instance in which a court has applied § 5-1105 where, as is the case here, it is asked to enforce an agreement that, by its terms, unambiguously relates to a future transaction. Cf. id. at 744 (language of agreement held enforceable provided that borrowers "acknowledge [d] ... [themselves] to be justly indebted to" lender). As a matter of first impression, the court concludes that § 5-1105 does not permit the court to do what Plaintiff asks: take an agreement—which unequivocally expresses a promise for a future loan—and interpret it as referencing an unexpressed prior loan. In other words, Plaintiff seeks to enforce the agreement not according to what it says, but according to what she claims were the parties' unexpressed intentions. While the court does not hold that no agreement may be enforced under § 5-1105 unless the words "past consideration" appear or the "past" nature of the consideration is unmistakable from the instrument, nothing in that provision permits the court to disregard the fundamental principle of contract law that Plaintiff implores it to jettison here, namely that contracts (particularly unambiguous, fully integrated contracts such as the Agreement) must be enforced according to their terms. See, e.g., R/S Assoc. v. New York Job Dev. Auth., 98 N.Y.2d 29, 32 (2002) ("When parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms."); see also Utica Mut. Ins. Co. v. Fireman's Fund Ins. Co., 957 F.3d 337, 344 (2d Cir. 2020) ("Under well-settled New York law ... a contract that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms."). Interpreting the contract by its terms, Plaintiff's breach of contract claim necessarily fails because she fails to allege that she advanced any monies to Defendant following the execution of the Agreement. See, e.g., Johnson v. Nextel Communications, Inc., 660 F.3d 131, 142 (2d Cir. 2011) (to state a valid breach of contract claim, plaintiff must allege, inter alia, her own performance under the agreement). Accordingly, Defendant's motion is granted.

 

Because Plaintiff asserts only a claim for breach of contract, the court does not resolve whether the facts she has alleged could support any other claim. --------

IV. CONCLUSION

For the foregoing reasons, Defendant's Motion to Dismiss (Dkt. 17) is GRANTED. If Plaintiff intends to move for leave to file an amended complaint, she is DIRECTED to confer with Defendant and submit a proposed briefing schedule for that motion by no later than 30 days from the date of this order. SO ORDERED. "

CONTRACT LAW - THE DOCTRINE OF DEFINITENESS

When writing contracts, ambiguous terms may defeat the whole purpose of the agreement.

Vizel v Vitale, 2020, NY Slip Op 03140, Decided on June 3, 202, Appellate Division, Second Department:

"In 2010, the plaintiff, as tenant, entered into a five-year lease with the defendant, as landlord, for certain commercial premises in Brooklyn. The agreement set forth fixed dollar amounts for annual rent, which increased for each successive year of the lease. The lease also contained an option to renew for an additional five-year term, conditioned upon the plaintiff not being in default under any provision of the lease. The option to renew was silent with regard to the rent to be paid during the renewal term.

In addition, the lease obligated the plaintiff to pay to the defendant the previous tenant's outstanding financial obligations, and also to purchase fixtures and equipment left behind by the previous tenant (hereinafter the purchase debt). The purchase debt was to be paid by the plaintiff in installments as additional rent.

Several months before the expiration date of the lease, the plaintiff advised the defendant in writing of his election to renew the lease. A few weeks after the original lease term expired, the defendant sent the plaintiff an amended lease which, among other things, set forth a fixed rent schedule for the renewal period that was substantially higher than the rent for the original lease term. The plaintiff did not execute the amended lease and instead continued to make rent payments in the amount he had been paying in the final year of the original lease term, contending that he had properly exercised the option to renew and was entitled to continue paying the rent charged under the original lease term during the renewal term. In January 2016, the defendant returned to the plaintiff six undeposited rent checks and notified the plaintiff that his tenancy was terminated. When the plaintiff refused to vacate the premises, the defendant commenced a holdover proceeding against him.

The plaintiff commenced this action, inter alia, for a judgment declaring that the subject lease had been validly renewed through June 30, 2020, and for injunctive relief staying the holdover proceeding commenced by the defendant. Noting that the annual rent increases under the original term of the lease amounted to three percent per year, the plaintiff alleged that the parties "understood" that the rent for the renewal period would likewise increase at a rate of three percent annually from the rent charged under the original lease term. The defendant asserted six counterclaims in his answer. In relevant part, the first counterclaim sought a judgment declaring that the lease did not contain a valid and enforceable option and that the lease had expired by its terms on June 30, 2015. The second counterclaim sought to recover damages for the plaintiff's use and occupancy of the leasehold premises during the holdover period. The fifth and sixth counterclaims sought to recover damages for the outstanding balance of the purchase debt and for late charges in connection therewith, respectively.

In an order dated September 18, 2018, the Supreme Court, inter alia, granted that branch of the defendant's motion which was for summary judgment, in effect, declaring that the lease did not contain a valid and enforceable option and that the lease had expired by its own terms on June 30, 2015, and on the second counterclaim, and determined that the defendant was entitled to recover damages for the plaintiff's use and occupancy of the leasehold premises in an amount to be determined at a subsequent framed-issue hearing. The court further determined that triable issues of fact precluded an award of summary judgment in favor of the defendant on the fifth and sixth counterclaims to recover the balance of the purchase debt and late charges. The court denied the plaintiff's cross motion for summary judgment. The plaintiff appeals, and the defendant cross-appeals, from the order.

We agree with the Supreme Court's granting of those branches of the defendant's motion which were for summary judgment, in effect, declaring that the lease did not contain a valid and enforceable option and that the lease had expired by its terms on June 30, 2015, and on the second counterclaim, as the option to renew was unenforceable for lack of definiteness. "The doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to" (Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91). Among the terms of a lease that must be known is the amount of rent that is to be paid (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109; Mur-Mil Caterers, Inc. v Werner, 166 AD2d 565, 566). The doctrine of definiteness, however, is not applied rigidly, and "where it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain" (Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d at 91). In the absence of an explicit contract term, the requirement of definiteness may be satisfied where: (1) the agreement itself sets forth an agreed methodology for determining the missing term within its four corners or (2) the agreement invites recourse to an objective extrinsic event, condition, or standard to ascertain the term (see id. at 91-92; Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d at 109).

Here, the parties' failure to set forth either the amount of rent to be paid during the renewal period, or an agreed formula, methodology, or objective extrinsic event by which that rent [*2]could be determined, rendered the option to renew an unenforceable agreement to agree (see generally Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d at 109; NHD Nigani, LLC v Angelina Zabel Props., Inc., 161 AD3d 758, 761; Total Telcom Group Corp. v Kendal on Hudson, 157 AD3d 746, 747). Thus, the defendant demonstrated his prima facie entitlement to judgment as a matter of law on the first and second counterclaims. The plaintiff's contention that the fixed rent amounts under the original lease term effectively evidenced the parties' agreement to a formula whereby rent would continue to increase by three percent annually during the renewal term was insufficient to raise a triable issue of fact in opposition to the motion, since this claim is belied not only by the omission of such a term from the lease itself, but also by the plaintiff's own failure to pay any such three percent increase after the expiration of the original lease term. Accordingly, we agree with the Supreme Court's determination granting those branches of the defendant's motion which were for summary judgment, in effect, declaring that the lease did not contain a valid and enforceable option and that the lease had expired by its terms on June 30, 2015, and on the second counterclaim, and denying those branches of the plaintiff's cross motion which were for summary judgment on the first and second causes of action in the amended complaint.

We further agree with the Supreme Court's denial of those branches of the defendant's motion which were for summary judgment on the fifth and sixth counterclaims to recover the purchase debt and late charges. "Generally, a written agreement which prohibits oral modification can only be changed by an  executory agreement . . . in writing'" (Calica v Reisman, Peirez & Reisman, 296 AD2d 367, 368, quoting General Obligations Law § 15-301[1]). "However, an oral modification is enforceable if the party seeking enforcement can demonstrate partial performance of the oral modification, which performance must be unequivocally referable to the modification" (Calica v Reisman, Peirez & Reisman, 296 AD2d at 369; see Rose v Spa Realty Assoc., 42 NY2d 338, 343-344; Matter of Latin Events, LLC v Doley, 120 AD3d 501).

Here, the defendant demonstrated, prima facie, that the plaintiff defaulted under the terms of lease when the plaintiff ceased to make monthly payments towards the purchase debt (see Renali Realty Group 3 v Robbins MBW Corp., 259 AD2d 682). However, in opposition, the plaintiff submitted sufficient evidence to raise a triable issue of fact as to whether there was partial performance of a modification of the lease whereby the defendant waived the plaintiff's obligation to pay the balance of the purchase debt (see Rose v Spa Realty Assoc., 42 NY2d at 343-344; Matter of Latin Events, LLC v Doley, 120 AD3d at 501-502)."

AN AMBIGUOUS DIVORCE AGREEMENT

Abadi v Abadi, 2019 NY Slip Op 08168, Decided on November 13, 2019, Appellate Division, Second Department:

"We agree with the Supreme Court's determination that the postnuptial agreement was ambiguous and that the evidence adduced at the hearing revealed that the parties intended the defendant to have a minimum monthly child support obligation of $1,250. "A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to the principles of contract construction and interpretation" (Matter of Tannenbaum v Gilberg, 134 AD3d 846, 847; see Ayers v Ayers, 92 AD3d 623, 624). Whether a writing is ambiguous is a matter of law for the court, and the proper inquiry is " whether the agreement on its face is reasonably susceptible of more than one interpretation'" (Clark v Clark, 33 AD3d 836, 837, quoting Chimart Assoc. v Paul, 66 NY2d 570, 573; see Salinger v Salinger, 125 AD3d 747, 749; Ayers v Ayers, 92 AD3d at 625).

Here, the relevant provisions of the postnuptial agreement are ambiguous (see Salinger v Salinger, 125 AD3d at 749). Paragraph 6.2 of the postnuptial agreement provides that the defendant shall pay monthly child support in an amount "equal to the sum of (a) 20% of his gross income from all sources up to the first $125,000 of his gross income plus (b) 25% of his gross income from all sources above $125,000 and up to $500,000, until such time as the parties' Children are emancipated." Paragraph 6.3 provides that "[b]ased on the [defendant's] current annual gross income of approximately $75,000 commencing on or before May 1, 2011, the [defendant] shall pay to the [plaintiff] the sum of ONE THOUSAND TWO HUNDRED AND FIFTY ($1,250) DOLLARS per month, as and for the direct support and maintenance of the parties' Children." Paragraph 6.4 provides that "[o]n or before January 30 of each year, to the extent that the [defendant]'s gross income from all sources was greater than $75,000 for the just completed calendar year, the [defendant] shall pay additional direct child support so that his direct child support payments for the prior completed calendar year satisfy the requirements of paragraph 6.2 above. In addition, his monthly direct child support obligations for the current calendar year shall be increased in accordance with paragraph 6.2 . . . The [defendant]'s direct child support obligation shall never be less than the amount set forth in paragraph 6.2 above." These provisions are ambiguous as to whether the parties intended the defendant to have a minimum child support obligation, given that paragraph 6.4 refers to the amount set forth in paragraph 6.2, but paragraph 6.2 provides for child support based on certain percentages of income, and paragraph 6.4 refers to the payment of "additional" and "increased" child support payments, which suggests that there is a minimum child support obligation.

"Where a stipulation of settlement is susceptible of differing interpretations and is thus ambiguous, a court is entitled to rely upon the language of the entire agreement and the circumstances surrounding its execution in construing the provision'" (Palaia v Palaia, 158 AD3d 719, 720-721, quoting Noren v Babus, 144 AD3d 762, 764; see Driscoll v Driscoll, 45 AD3d 723). Thus, extrinsic evidence of the parties' intent may be considered if the agreement is ambiguous (see Greenfield v Philles Records, 98 NY2d 562, 566).

Here, the evidence adduced at the hearing included the plaintiff's testimony, a draft version of the postnuptial agreement, and a sworn statement of net worth dated February 8, 2015, in which the defendant stated that he had no income in 2015 but had a monthly expense of $1,250 for child support. This evidence reveals that the parties intended that the defendant's monthly child support obligation would never be less than the amount set forth in paragraph 6.3, $1,250 per month, and that the reference to "the amount set forth in paragraph 6.2" was a typographical error. Moreover, we accord deference to the Supreme Court's determination that the plaintiff testified credibly regarding the parties' intent and that the defendant was evasive as to this issue (see Cutroneo v Cutroneo, 140 AD3d 1006, 1009)."

TOO MANY CONTRACTS CAN SPOIL THE BROTH

Here there were so many contracts between the parties that had inconsistent language: another type of battle of the forms

County of Nassau v Technology Ins. Co., Inc., 2019 NY Slip Op 05954, Decided on July 31, 2019, Appellate Division, Second Department"

"The plaintiffs, County of Nassau and Nassau County Department of Public Works, commenced this action against Technology Insurance Co., Inc. (hereinafter TIC), and Looks Great Services, Inc. (hereinafter LGS). The plaintiffs alleged that LGS performed work for the plaintiffs and was required to maintain general liability insurance naming the plaintiffs as additional insureds. LGS's work for the plaintiffs included performing emergency debris removal services following a hurricane. The plaintiffs further alleged that LGS, through its agents, employees, subcontractors, or sub-subcontractors, was involved in a motor vehicle collision while operating a tractor trailer on an expressway. Allegedly, the plaintiffs had received multiple claims and had been named in two underlying actions related to the collision. LGS produced evidence that it was insured under a certain general liability insurance policy issued by TIC. According to that insurance policy, the plaintiffs were additional insureds as "required by written contract." TIC, however, had refused to defend or indemnify the plaintiffs in the claims related to the collision. The plaintiffs sought a judgment declaring that TIC is obligated to defend and indemnify the plaintiffs under the TIC policy. The plaintiffs also sought, inter alia, to recover damages from TIC for breach of the insurance policy and from LGS for breach of contract.

The plaintiffs moved for summary judgment declaring that TIC is obligated to defend [*2]and indemnify the plaintiffs, and on the issue of liability on the second and third causes of action, which alleged breach of contract against TIC and LGS, respectively. In an order entered October 28, 2016, the Supreme Court, inter alia, denied the plaintiffs' motion. The plaintiffs appeal.

"When determining whether a third party is an additional insured under an insurance policy, a court must ascertain the intention of the parties to the policy, as determined from within the four corners of the policy itself" (Superior Ice Rink, Inc. v Nescon Contr. Corp., 52 AD3d 688, 691). Here, the subject insurance policy provides that the plaintiffs were additional insureds as "required by written contract." Consequently, the plaintiffs' entitlement to defense and indemnification under the insurance policy depends on whether LGS was contractually required to maintain general liability insurance naming the plaintiffs as insureds.

The question of whether LGS was contractually required to maintain general liability insurance naming the plaintiffs as insureds cannot be resolved on the record before us. "The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent. The best evidence of what parties to a written agreement intend is what they say in their writing. Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569 [citations and internal quotation marks omitted]). "While the meaning of a contract is ordinarily a question of law, when a term or clause is ambiguous and the determination of the parties' intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence, then the issue is one of fact" (Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880).

The record includes multiple agreements between the plaintiffs and LGS. A "Blanket Purchase Order" (hereinafter BPO), awarded under a formal sealed bid proposal and relating to tree pruning and stump removal, included provisions requiring LGS to procure liability insurance naming the plaintiffs as insureds and to defend and indemnify the plaintiffs. A "Debris Management Agreement" (hereinafter DMA), relating to "such professional services as may be required to effect disaster response and recovery," did not include these provisions. Four "Supplemental Agreement[s]" each provide, in part, that "[t]his Supplemental Agreement is entered into pursuant to the provisions of the original [DMA] . . . entered into in 2011 under the existing [BPO]." Under these circumstances, triable issues of fact exist regarding whether the occurrences were covered by the DMA or the BPO, and thus the plaintiffs were not entitled to summary judgment on the cause of action seeking a declaration that TIC was obligated to defend and indemnify the plaintiffs.

Similarly, the plaintiffs failed to demonstrate their prima facie entitlement to judgment as a matter of law on the second and third causes of action, alleging breach of contract. Given the triable issue of fact as to whether the plaintiffs are covered under the insurance policy, the plaintiffs have not shown, prima facie, that TIC breached the insurance policy by, inter alia, failing to defend or indemnify the plaintiffs. Additionally, the plaintiffs failed to establish, prima facie, that a binding indemnification agreement between LGS and the plaintiffs was in effect at time of the collision, and, moreover, failed to eliminate all triable issues of fact as to whether the plaintiffs were free from negligence in connection with the collision (see Poalacin v Mall Props., Inc., 155 AD3d 900, 910).

Since the plaintiffs did not demonstrate their prima facie entitlement to summary judgment declaring that TIC is obligated to defend and indemnify the plaintiffs, and on the issue of liability on the second and third causes of action, alleging breach of contract, we agree with the Supreme Court's denial of their motion, without regard to the sufficiency of the defendants' opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

BASIC CONTRACT INTERPRETATION RULES

"The shorter and the plainer the better." ~ Beatrix Potter

Atlantic Shores Bldrs. & Devs., Inc. v Federico, 2019 NY Slip Op 05950, Decided on July 31, 2019, Appellate Division, Second Department:

"" In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses'" (Quadrozzi v Estate of Quadrozzi, 99 AD3d 688, 691, quoting BRK Props., Inc. v Wagner Ziv Plumbing & Heating Corp., 89 AD3d 883, 884; see Yarom v Poliform S.P.A., 153 AD3d 760, 761). " The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance. If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence'" (Palombo Group v Poughkeepsie City Sch. Dist., 125 AD3d 620, 621, quoting Law Offs. of J. Stewart Moore, P.C. v Trent, 124 AD3d 603, 603 [citations omitted]; see Yarom v Poliform S.P.A., 153 AD3d at 761). Accordingly, "[w]hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations" (Patsis v Nicolia, 120 AD3d 1326, 1327)."

DIVORCE - STANDARD LANGUAGE IN AGREEMENT IS AMBIGUOUS

Cohen v Cohen, 2018 NY Slip Op 05277 Decided on July 18, 2018. Appellate Division, Second Department:

"In October 2013, the parties entered into a "Stipulation of Settlement Opting Out Agreement," which was incorporated but not merged into a judgment of divorce dated April 2, 2014. Insofar as relevant to this appeal, article XIII, paragraph "1," of the stipulation of settlement addressed the parties' respective liability for their jointly filed 2013 tax returns, and provided that [*2]any taxes due were to be "paid by the parties in proportion to their respective income."

In January 2015, the defendant moved, inter alia, to enforce the stipulation of settlement by seeking a determination of the plaintiff's proportionate liability for the parties' jointly filed 2013 taxes and to direct the plaintiff to pay that sum. The plaintiff cross-moved, inter alia, for an award of counsel fees. In the order appealed from, the Supreme Court, inter alia, granted that branch of the defendant's motion which was, in effect, for a determination of the plaintiff's proportionate liability for the parties' jointly filed 2013 taxes, and determined that the plaintiff was responsible for 11.3% of the parties' tax liability for 2013, with credit for any payments already made. The court also denied those branches of the motion and cross motion which were for an award of counsel fees.

"A stipulation of settlement is a contract, enforceable according to its terms" (Stein v Stein, 130 AD3d 604, 605; see Palaia v Palaia, 158 AD3d 719; Klein v Klein, 134 AD3d 1066, 1068). "As with other contracts, when the terms of a separation agreement are clear and unambiguous, the general rule is that the intent of the parties is to be found within the four corners of the agreement" (Surlak v Surlak, 95 AD2d 371, 375). " Whether an agreement is ambiguous is a question of law for the courts'" (Boster-Burton v Burton, 92 AD3d 909, 910, quoting Kass v Kass, 91 NY2d 554, 566). "The resolution of an ambiguous provision, for which extrinsic evidence may be used, is for the trier of fact" (Boster-Burton v Burton, 92 AD3d at 910).

Here, the relevant provision of the parties' stipulation of settlement is ambiguous as to how to calculate the parties' respective income in connection with the apportionment of their 2013 tax liability. The parties' submissions were insufficient to resolve the ambiguity. Accordingly, we remit the matter to the Supreme Court, Nassau County, for an evidentiary hearing at which extrinsic evidence may be introduced to determine the parties' intent with regard to the relevant provision of the stipulation (see id.; Bianco v Bianco, 21 AD3d 918, 919; Chudick v Chudick, 287 AD2d 590; Laing v Laing, 282 AD2d 655, 655-656; see also Nirenberg v Nirenberg, 203 AD2d 980; Graepel v County of Nassau, 119 AD2d 800), and for a new determination thereafter as to that branch of the defendant's motion which was, in effect, for a determination of the plaintiff's proportionate liability for the parties' jointly filed 2013 taxes and to direct the plaintiff to pay that sum."