Opinion
50023/2012
05-03-2016
K.D., Plaintiff, v. L.D., Defendant.
For Defendant, Former Husband O'Reilly Stoutenburg and Richards LLP By Meaghan Carey, Esq. 32 East 57th Street, 8th Floor New York, New York 10022 (212) 419-9880 For Plaintiff, Former Wife Alison Aplin Esq. 281 Rhine Ave, Staten Island, NY 10304 (646) 791-9383
For Defendant, Former Husband O'Reilly Stoutenburg and Richards LLP By Meaghan Carey, Esq. 32 East 57th Street, 8th Floor New York, New York 10022 (212) 419-9880 For Plaintiff, Former Wife Alison Aplin Esq. 281 Rhine Ave, Staten Island, NY 10304 (646) 791-9383 Catherine M. DiDomenico, J.
Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion Sequence Number 002
Numbered
Order to Show Cause by Plaintiff, 1 (filed January 14, 2016) Affidavit in Opposition by Plaintiff, 2 (filed February 4, 2016) Upon the foregoing cited papers, the Decision and Order on Defendant's application is as follows:
Defendant, former Husband, moves by Order to Show Cause to "reform" a Stipulation of Settlement, dated May 4, 2014 which resolved the above captioned divorce proceeding. This Stipulation of Settlement, was incorporated, but not merged, into a Judgment of Divorce which was signed by this Court on October 20, 2014. It is undisputed that the Stipulation of Settlement was negotiated both in and out of court, signed in Court, and that the parties were fully allocuted as to their understanding of the agreement. (See record of May 5, 2014). At the time the Stipulation of Settlement was drafted, and the allocution conducted, both parties were represented by counsel.
Defendant now seeks to reform this two year old contract on the ground that it allegedly does not represent the agreement of the parties. Defendant argues that the agreement was intended to provide for a "50-50 split of the marital assets" but that under the contract terms as written he will only receive 40% share of the marital estate. Defendant specifically objects to a particular clause, in the "Retirement Accounts" section of the Stipulation which provides that:
"The Husband agrees that the Wife shall be entitled to a 50% share of any and all Deutsche Bank retirement account i.e. pension/cash plan/defined benefit plan payments made payable to the Husband by virtue of his employment during the marriage ."
Defendant now claims, that despite the clear language of this clause, he should have received 100% of a certain retirement account, to wit, the "DB Cash Pension Account." Defendant argues that the above clause was included in the final draft of the agreement in error, and that it ultimately will result in him receiving a less than equal share of the marital estate, which he describes as a "windfall" to his former Wife. Plaintiff, former Wife, argues that there was absolutely no mistake, that the agreement was negotiated, drafted, and signed as intended. In addition, Plaintiff argues that former Husband had a multitude of opportunities to review the stipulation, as he reviewed it in Court before it was signed, and once again when it formed the basis of the parties' Judgment of Divorce. Plaintiff argues that the Defendant's motion is frivolous and should be dismissed as a matter of law together with an award of counsel fees for having to prepare opposition. While Plaintiff requests affirmative relief in her opposition papers, she has not filed a cross motion, motion to dismiss, or other properly filed request for relief. Accordingly, Plaintiff 's request for affirmative relief will not be addressed by this Court, at this time. See Vanek v. Mercy Hospital, 135 AD2d 707 (2d Dept. 1987); See also, Hosten v. Oladapo, 44 AD3d 1006 (2d Dept. 2007).
A stipulation of settlement which is incorporated into a judgment of divorce is a contract subject to principles of contract construction and interpretation. See Cohen-Davidson v. Davidson , 291 AD2d 474 (2d Dept. 2002). Where such an agreement is "clear and unambiguous" on its face, the intent of the parties must be gleaned from the four corners of the instrument, not from outside evidence of alleged intent. See Hanau v. Cohen , 121 AD3d 940 (2d Dept. 2014); See also Tamburello v. Tamburello , 113 AD3d 752 (2d Dept. 2014). A contract's terms must be enforced in accordance with the language used, and the court should not "distort the apparent meaning." Ayers v. Ayers , 92 AD3d 623 (2d Dept. 2012). "Procedurally, there is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties, and a correspondingly high order of evidence is required to overcome that presumption." Chimart Associates v. Paul , 66 NY2d 570 (1986). Generally, a unilateral mistake of fact is insufficient to support a claim for reformation absent fraud in the inducement. See Marren v. Nathan , 2 AD3d 230 (1st Dept. 2003). A mutual mistake of fact may form the basis for reformation, but only when the parties reached an agreement and, "unknown to either" the signed writing does not express the agreed upon terms. See Book v. Book , 58 AD3d 781 (2d Dept. 2009).
Here, Defendant argues that the language in the agreement, which specifically states that both parties would receive 50% of the all retirement accounts was a "vestige of earlier negotiations" and should have been removed. Defendant further argues that the clause is somehow ambiguous as it is allegedly contradicted later in the agreement. While Defendant acknowledges that he initialed the very page at issue, and reviewed and signed the document as a whole, he tries to minimize his signature, initials, and sworn allocution, by indicated that he "reviewed it quickly." Plaintiff disagrees and argues that there was "no mistake, no misrepresentation and no errors no ambiguity." Plaintiff argues that the agreement should be enforced as written.
After consideration of the facts and the law, Defendant's application to reform the contract on the ground that it was incorrectly drafted is hereby denied. A review of the Stipulation of Settlement reveals that it is in no way vague or ambiguous, as the paragraph at issue clearly indicates that the retirement accounts are to be split equally. See Re/MAX of NY , Inc. v. Energized Realty Group , LLC , 135 AD3d 924 (2d Dept. 2016). As the contract terms are clear and unambiguous, and any claimed mistake is unilateral in nature, a hearing is not required. See Davis v. NY City Hous. Auth., 300 AD2d 531 (2d Dept. 2002). Even assuming all of Defendant's facts to be true, he "cannot prove anything more than a unilateral mistake, an insufficient basis for reformation." Rotter v. Ripka , 110 AD3d 603 (1st Dept. 2013). The only instance where reformation can be based upon a unilateral mistake is if that mistake was "induced by the other party's fraudulent misrepresentation". Moshe v. Town of Ramapo , 54 AD3d 1030 (2d Dept. 2008). Defendant does not claim that he was fraudulently induced into signing the agreement, but simply that he did not review it thoroughly before it was signed, before the parties were allocuted on the record, and when the Judgment of Divorce was served upon him for review before signature. Defendant's facts do not support a claim for reformation, and accordingly his application is hereby denied.
This constitutes the Decision and Order of this Court in relation to Defendant's application identified at motion sequence number 002. All other issues raised in that motion, but not specifically addressed herein, are denied. Dated: May 3, 2016
____________________________ Hon. Catherine M. DiDomenico Acting Justice Supreme Court