Opinion
1700/2015
06-10-2015
Kris DEFILIPPI, Plaintiff, v. Keri DEFILIPPI, Defendant.
Patricia T. Bisesto, Esq., White Plains, attorney for plaintiff. David M. Rosoff, Esq., Carton & Rosoff P.C., White Plains, attorneys for defendant.
Patricia T. Bisesto, Esq., White Plains, attorney for plaintiff.
David M. Rosoff, Esq., Carton & Rosoff P.C., White Plains, attorneys for defendant.
Opinion PAUL I. MARX, J.
The following papers numbered 1 to 9 were read on Defendant's motion to dismiss Plaintiff's complaint in its entirety, award attorney's fees on the motion and impose sanctions against Plaintiff for filing a frivolous action:
| Notice of Motion to Dismiss/Affirmation of David M. Rosoff, Esq./Affirmation of | |
| Daniel S. Szalkiewicz, Esq./Exhibits A–Q | 1–3 |
| Memorandum of Law in Support of Motion to Dismiss | 4 |
| Affirmation of Patricia T. Bisesto, Esq. in Opposition/Affidavit of | |
| 5–6 | |
| Plaintiff's Memorandum of Law in Opposition | 7 |
| Reply Affirmation of David M. Rosoff, Esq./Exhibit R | 8 |
| Reply Memorandum of Law | 9 |
The parties are not consistent in the way they write their surname. Plaintiff uses a lower case “f” and writes it as one word, “Defilippi”. Defendant uses an upper case “F” and separates the two parts, as “De Filippi”. The Court opts to use the Plaintiff's version.
BACKGROUND
The parties were married on August 28, 2004. There are three unemancipated children of the marriage: C.D., born ________; and twins, E. and A.D., born ________.
On May 14, 2012, Keri Defilippi filed an action for divorce against Kris Defilippi in this Court, Keri Defilippi v. Kris Defilippi, Index No. 3137/2012, based upon the irretrievable breakdown of the marriage pursuant to Domestic Relations Law (“DRL”) § 170(7). The parties and their counsel negotiated a settlement of the action and drafted and executed a written Stipulation of Settlement, dated December 4, 2013. Notice of Motion to Dismiss, Stipulation of Settlement of Keri Defilippi and Kris A. Defilippi, Exhibit D. Both parties initialed each page and signed the last page of the Stipulation of Settlement. In addition, both parties executed a sworn and notarized affidavit attesting that each one had read the Stipulation in its entirety, understood the contents and agreed that it accurately embodied and contained all of the terms of their agreement. Each party attested that they voluntarily entered into the Stipulation of Settlement with the advice of counsel and without duress or coercion or the influence of drugs or alcohol. A copy of each party's affidavit is appended to the Stipulation of Settlement. However, neither the Stipulation of Settlement nor the affidavits contain an acknowledgment that conforms to the requirements of DRL § 236(B)(3). The Stipulation of Settlement is a full and complete recitation of the terms of the parties' agreement, consisting of 51 pages. It provides for the disposition of the parties' personal property, responsibility for debts, and the release and discharge of any rights under any will, codicil or testamentary writing. The Stipulation further provides for joint legal custody and access pursuant to a schedule set forth in the agreement. It also provides that child support payments in the amount of $2,750 per month are to be paid by Plaintiff to Defendant. The Stipulation states that no maintenance or support payments are to be made by either party. Id. at 12. It sets out comprehensive terms for equitable distribution, including allowing each to retain any “bank, brokerage, securities and stock accounts, real estate, business interest, income, partnership interest, stock options, degrees, enhanced earning capacity, security deposits, IRAs, 401K plans, 403b plans, profit sharing and pension plans in his/her name.” Id. at 29. It provides for Defendant to deliver the deed to the marital residence to Plaintiff and that he shall defend a pending foreclosure action. The Stipulation lists three entities and four real properties that are solely owned by Plaintiff. It provides for Defendant to receive $250,000 for equitable distribution, according to a schedule of payments. The Stipulation contains further provisions regarding taxes and insurance.
The parties agreed in the Stipulation of Settlement that their “Agreement is entered into and is to be governed by Section 236, Part B of the Domestic Relations Law of the State of New York, commonly known as the Equitable Distribution Law ...”. Notice of Motion, Stipulation of Settlement, Exhibit D at 3 (second “Whereas” clause). The Stipulation also contains a severability clause by which the parties agreed that if any provision is declared illegal or invalid, the remainder of the agreement shall continue in full force and effect.
Curiously, despite this clear provision in the Stipulation of Settlement, Plaintiff alleges that “the maintenance provision must be set aside by the Court and Plaintiff eliminated from any further obligation to pay maintenance to Defendant.” Notice of Motion, Verified Complaint, Exhibit I at ¶ 17. Plaintiff also alleges that he has paid “fifteen (15) months of maintenance payments in the amount of $41,250.” Id. at ¶ 21. In fact, that amount corresponds to 15 months of child support in the amount of $2,750 per month. Stipulation of Settlement, Article Viii at ¶ 1. The Judgment of Divorce also mislabels child support as maintenance. Notice of Motion, Exhibit H at 3.
On March 28, 2014, the divorce documents, including the executed Stipulation of Settlement, were submitted to the undersigned for review and signature, with notice to Plaintiff and his counsel. Plaintiff did not object to the divorce documents or proposed judgment or submit a counter proposed judgment. Plaintiff did not point out any defect in the Stipulation of Settlement or seek to set it aside. Neither party requested to appear in court to be allocuted on the terms of the Stipulation of Settlement. On April 3, 2014, the undersigned executed the proposed Judgment of Divorce dissolving the parties' marriage. The Stipulation of Settlement was incorporated, but not merged, into the Judgment of Divorce. Notice of Motion to Dismiss, Judgment of Divorce, Exhibit H.
Indeed, Plaintiff's counsel signed the proposed Judgment of Divorce submitted to the Court, indicating that it was “Approved as to form and substance”. Notice of Motion, Judgment of Divorce, Exhibit H at 5.
Plaintiff did not move to vacate or appeal from the Judgment of Divorce. For more than a year after the Stipulation of Settlement was entered into, Plaintiff complied with its terms, including making child support and equitable distribution payments to Defendant. However, Plaintiff's compliance has been inconsistent, necessitating Defendant to file enforcement petitions in Family Court on July 16, 2014 and March 24, 2015. Notice of Motion, Exhibits L and M. In addition, Defendant filed a family offense petition against Plaintiff on November 6, 2014 and obtained a temporary order of protection. Notice of Motion, Affirmation of David M. Rosoff, Esq. That petition was settled by stipulation on February 11, 2015, but Plaintiff failed to sign the stipulation. Plaintiff also failed to make the equitable distribution payment due to Defendant on April 1, 2015. Id.
Plaintiff cannot now seek to vacate the Judgment of Divorce. He may seek to set aside the Stipulation of Settlement because it did not merge into the Judgment of Divorce. Contrary to Defendant's contention, this plenary action is a proper means to challenge the Stipulation of Settlement.
Plaintiff filed a petition in Family Court on January 7, 2015, seeking to modify his support obligation based upon his alleged lack of sufficient income. On February 27, 2015, Plaintiff withdrew his petition.
On March 26, 2015, Plaintiff filed the instant action against Defendant, seeking to set aside the Stipulation of Settlement they had entered into in their prior divorce action. Plaintiff alleges that the Stipulation of Settlement is void ab initio, because DRL § 236(B)(3) required it to be “acknowledged or proven in the manner required to entitle a deed to be recorded”. Plaintiff requests that the provisions in the Judgment of Divorce regarding child support and maintenance be vacated and set aside. He claims that he should be allowed to recoup the sum of $170,000 he paid Defendant for her share of equitable distribution and the $41,250 of support payments he has made to Defendant. In the alternative, Plaintiff requests that any monies he has paid to Defendant be used to off set any future monetary obligations deemed owed to her, including child support. Plaintiff asks the Court to conduct a de
novo review of child support, eliminate maintenance, recoup the equitable distribution payment he has made or use it as a set-off against future child support or other awards made to Defendant. However, he also requests that the Court issue an order leaving the access schedule in place and providing joint legal and physical custody of the parties' children. In essence, Plaintiff seeks to rewrite the terms of the Stipulation of Settlement.
After service of the summons and complaint in this action, Defendant's counsel telephoned Plaintiff's counsel and followed up with a confirming letter advising counsel that the complaint failed to state a valid cause of action. Defense counsel requested Plaintiff's counsel to withdraw the action and stated that Defendant would seek attorney's fees and sanctions if the action was not withdrawn.
DISCUSSION
Dismissal
Defendant moves to dismiss this action on the ground that it fails to state a cause of action, because the Stipulation of Settlement was properly executed in accordance with the law prevailing in the Second Department. Defendant relies primarily on the decision in Rio v. Rio, 110 A.D.3d 1051, 974 N.Y.S.2d 491 [2nd Dept.2013]. She contends that Rio is controlling law on the issue of whether an agreement settling a divorce action must comply with the formalities of DRL § 236(B)(3), which requires an acknowledgment in the manner required for a deed to be recorded. She asserts that Rio plainly stated that DRL § 236(B)(3) only applies to nuptial agreements that are entered into outside of a pending judicial proceeding. Defendant contends further that Rio held that CPLR § 2104 and not DRL § 236(B)(3) governs execution of an agreement between parties settling their pending divorce action.
Therefore, he asserts, Rio provides that the lack of an acknowledgment in a form which would allow a deed to be recorded does not void the Stipulation of Settlement entered into by the parties. In opposition, Plaintiff contends that “all divorce agreements” between spouses “where judicial oversight is not present” must satisfy the requirements of DRL § 236(B)(3). Memorandum of Law in Opposition at 3. He argues that the Stipulation of Settlement is not valid because it was not acknowledged in the manner required by DRL § 236(B)(3). He claims that Rio and the other cases cited by Defendant are distinguishable because they involved “a high level of judicial oversight”. Plaintiff seems to suggest by his argument that a strict application of DRL § 236(B)(3) may be obviated by judicial oversight. That position is inconsistent with Plaintiff's pleading, which alleges that DRL § 236(B)(3) must be strictly applied. More importantly, it is at odds with the Court of Appeals' decisions in Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209, 681 N.E.2d 376 [1997] and Galetta v. Galetta, 21 N.Y.3d 186, 969 N.Y.S.2d 826, 991 N.E.2d 684 [2013], which require strict compliance with DRL § 236(B)(3) for nuptial agreements to be held valid and enforceable.
Matisoff involved a postnuptial agreement entered into one month after the parties married, which the husband sought to enforce 13 years later in the divorce action the wife commenced against him. There was no question that the agreement at issue in Matisoff was the type of agreement that is governed by DRL § 236(B)(3), because it was “a nuptial agreement made before or during the marriage”. The issue for the court was whether the agreement was valid because it was not acknowledged. Reversing the trial court, the Appellate Division upheld the postnuptial agreement based upon its determination that “the terms of the postnuptial agreement were acknowledged and ratified in the daily activities and property relations of the parties throughout [the] marriage.' ” Matisoff, supra, at 132, 659 N.Y.S.2d 209, 681 N.E.2d 376 (quoting Appellate Division, Matisoff v. Dobi, 228 A.D.2d 200, 202, 644 N.Y.S.2d 13 [1st Dept.1996] ).
The Court of Appeals reversed the Appellate Division, finding that its analysis would create uncertainty, because the decision whether to enforce an unacknowledged nuptial agreement would depend on whether the couple acted consistent with their agreement during their marriage, as well as the original intent of the parties. The court stated that “[s]uch uncertainty is contrary to the plain language of Domestic Relations Law § 236(B)(3), which recognizes no exception to the requirement of formal acknowledgment.” Id. at 132, 659 N.Y.S.2d 209, 681 N.E.2d 376. “[B]y clearly prescribing acknowledgment as a condition, with no exception, the Legislature opted for a bright-line rule. [The court] therefore [held] that an unacknowledged agreement is invalid and unenforceable in a matrimonial action.” Id. at 136, 659 N.Y.S.2d 209, 681 N.E.2d 376. The parties could not substitute an acknowledgment, absent at the time of execution of their agreement, with their later testimony at trial regarding the manner of execution and the absence of fraud or duress. Where an acknowledgment is completely absent from a nuptial agreement, the agreement is unenforceable.
In Galetta, the Court of Appeals reaffirmed its holding in Matisoff that DRL § 236(B)(3) “recognizes no exception to the requirement that a nuptial agreement be executed in the same manner as a recorded deed and that the requisite formality explicitly specified in Domestic Relations Law § 236(B)(3) is essential'.” Galetta, supra, at 191, 969 N.Y.S.2d 826, 991 N.E.2d 684 (quoting Matisoff, supra, at 132, 659 N.Y.S.2d 209, 681 N.E.2d 376 ). The issue addressed by the court in Galetta was whether a prenuptial agreement was invalid because one of the certificates of acknowledgment that accompanied the agreement was defective. The certificate of acknowledgment of the husband's signature omitted a critical phrase indicating that the notary public had confirmed the husband's identity and that the husband was the person described in the agreement. In a divorce action commenced by the wife more than 13 years after the prenuptial agreement was executed, the wife sought a declaration that the agreement was not enforceable due to the defect in the acknowledgment. The husband argued for enforcement of the agreement on the ground that it was in substantial compliance with Real Property Law § 291. In his opposition to his wife's motion for summary judgment, the husband included an affidavit from the notary public who had witnessed his signature on the agreement. The notary public attested that it was his custom and practice to confirm the identity of the person who signed a document and that the person was the one described in the document. The notary presumed that he had acted in accordance with his customary practice when he witnessed the husband's signature on the agreement.
Because Real Property Law § 291, which governs the recording of deeds, supplies the standard for an acknowledgment and “a deed may be recorded if it is either duly acknowledged' or proved' by use of a subscribing witness”, Galetta, supra, at 191, 969 N.Y.S.2d 826, 991 N.E.2d 684, the court examined the acknowledgment procedure and methodology of Real Property Law § 291 to determine whether the notary public's affidavit could cure the defect in the acknowledgment. Ultimately, the court did not resolve the issue whether a defective acknowledgment could be cured, because it found the notary public's affidavit to be insufficient. However, the court stated that establishing a rule which precludes curing a defective acknowledgment would ensure that at the time the parties enter into a nuptial agreement, they are fully cognizant of “the significance of the document” and have entered into it with “a measure of deliberation”. The purpose behind the acknowledgment is to enable a court to enforce the agreement in a subsequent matrimonial action. Id. at 196, 969 N.Y.S.2d 826, 991 N.E.2d 684.
In Matisoff and Galetta, there was no question as to the applicability of DRL § 236(B)(3), because both cases involved nuptial agreements that were made before, or shortly after marriage and were entered into outside of a judicial proceeding to terminate the marriage. The Court of Appeals has not yet addressed the issue whether DRL § 236(B)(3) applies to stipulations of settlement entered into in a matrimonial action. The Appellate Divisions are split on the issue. The First and Second Departments hold that the statute does not apply to such agreements made in open court. Rubenfeld v. Rubenfeld, 279 A.D.2d 153, 158, 720 N.Y.S.2d 29 [1st Dept.2001] ; Nordgren v. Nordgren, 264 A.D.2d 828, 695 N.Y.S.2d 588 [2nd Dept.1999]. The Third and Fourth Departments hold the opposite. Lischynsky v. Lischynsky, 95 A.D.2d 111, 466 N.Y.S.2d 815 [3rd Dept.1983] ; Hanford v. Hanford, 91 A.D.2d 829, 458 N.Y.S.2d 418 [4th Dept.1982] (applying Giambattista v. Giambattista, 89 A.D.2d 1057, 454 N.Y.S.2d 762 [4th Dept.1982] ).
The Second Department has long held that stipulations of settlement in matrimonial actions that are made in open court are governed by CPLR § 2104, rather than DRL § 236(B)(3). In Harrington v. Harrington, 103 A.D.2d 356, 360–361, 479 N.Y.S.2d 1000 [2nd Dept.1984], the court stated that DRL § 236(B)(3) “should not be utilized to prohibit an oral stipulation made in open court, but should be more reasonably interpreted as encouraging agreements between the parties before and during the marriage provided that they are in writing and properly subscribed and acknowledged or entered into in open court'.” (internal citation omitted). Following the Court of Appeals' decision in Matisoff, supra, the Second Department explicitly stated that “there is nothing in Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209, 681 N.E.2d 376, which indicates that the Court of Appeals intended to abrogate [the] well-settled law or CPLR 2104.' ” Nordgren, supra, at 829, 695 N.Y.S.2d 588 (quoting Natole v. Natole, 256 A.D.2d 558, 559, 682 N.Y.S.2d 864 [2nd Dept.1998] ).
In Rio, the Second Department extended its holding further to apply to a written agreement entered into between the parties to resolve their divorce action, although it was not entered into in open court. There were two prior agreements at issue in the parties' pending divorce action: a duly acknowledged separation agreement dated March 11, 2005, and a postnuptial agreement executed on September 22, 2009 during the parties' prior divorce action. The prior action was discontinued when the parties entered into an agreement, which their counsel denominated as a postnuptial agreement. The husband commenced a later divorce action seeking to invalidate the postnuptial agreement and enforce the duly acknowledged separation agreement. The Appellate Division upheld the validity of the postnuptial agreement, which revoked the prior separation agreement, specifically finding “that Domestic Relations Law § 236(B)(3) does not compel a different result.” Rio, supra, at 1053, 974 N.Y.S.2d 491. The court explained that it upheld the stipulation of settlement in that case because “it was executed in the context of a pending divorce proceeding, and was subject to judicial oversight, even though it was not signed in open court'.” Rio, supra, at 1053–1054, 974 N.Y.S.2d 491 (quoting Acito v. Acito, 23 Misc.3d 832, 836, 874 N.Y.S.2d 367 [Sup.Ct., Bronx County 2009], affd. 72 A.D.3d 493, 898 N.Y.S.2d 133 [1st Dept.2010] ; citing CPLR 2104 ).
This Court's research did not disclose any reported decisions of any of the other Departments addressing this issue.
Plaintiff argues that the decision in Rio was made based upon “a unique and complicated set of facts” that are not present in this case. Memorandum of Law in Opposition at 5. Indeed, the facts in Rio were somewhat complicated. Nevertheless, the Appellate Division upheld the validity of the postnuptial agreement terminating the prior divorce action, even though it was not made in open court. Rio, supra, at 1053, 974 N.Y.S.2d 491. In making its determination, the Appellate Division made two statements that are of critical importance. First, the court stated that “Domestic Relations Law § 236(B)(3) applies only to agreements entered into outside the context of a pending judicial proceeding'.” Id. (quoting Rubenfeld, supra, 279 A.D.2d at 158, 720 N.Y.S.2d 29 ). Second, the court stated that “[s]tipulations of settlement are favored by the courts and are not lightly cast aside.” Id. (quoting Castellano v. Castellano, 66 A.D.3d 942, 942, 888 N.Y.S.2d 139 [2nd Dept.2009] ).
What is curious (and somewhat troubling) about Rio is the court's statement that the postnuptial agreement settling the action was “subject to judicial oversight”. Rio, supra, at 1054, 974 N.Y.S.2d 491 (internal quotation omitted). Indeed, it appears from the decision that at the time the agreement was negotiated and entered into between counsel for the parties, there was no involvement by the trial court and no opportunity for judicial oversight. The parties executed the agreement and filed a stipulation to discontinue the prior divorce action. There was no Judgment of Divorce and no review by the court of the agreement or any allocution by the court as to its terms. Judicial oversight of the agreement only came later in the subsequent divorce action in the form of “the Supreme Court referr[ing] to the appellant's obligations pursuant to the postnuptial agreement in two prior orders.”Rio, supra, at 1053, 974 N.Y.S.2d 491. Therefore, while the court upheld the validity of the agreement without an acknowledgment or allocution by the court on its terms, it is not entirely clear that the court intended to dispense completely with the requirement of judicial oversight.
Nevertheless, Rio reaffirms the Second Department's position that the lack of an acknowledgment consistent with DRL § 236(B)(3) does not void a stipulation of settlement terminating a matrimonial action. As both the First and Second Departments have long held, “section 236(B)(3) of the Domestic Relations Law applies only to agreements entered into outside the context of a pending judicial proceeding, such as antenuptial agreements.... [T]he statute [does not restrict] the ability of the parties to terminate litigation upon mutually agreeable terms especially where, as here, the court has exercised its oversight and [approved] the stipulation”. Sanders v. Copley, 151 A.D.2d 350, 351–52, 543 N.Y.S.2d 67 [1st Dept.1989].
The Second Department's position is consistent with the “long favored” judicial policy of “encourag[ing] the fashioning of stipulations as a means of expediting and simplifying the resolution of disputes”. Mitchell v. New York Hosp., 61 N.Y.2d 208, 214, 473 N.Y.S.2d 148, 461 N.E.2d 285 [1984] (citing Salesian Socy. v. Village of Ellenville, 41 N.Y.2d 521, 525–526, 393 N.Y.S.2d 972, 362 N.E.2d 604 [1977] ). That policy is equally applicable in matrimonial actions. Natole, supra, at 558, 682 N.Y.S.2d 864 ; Sanders, supra. “Generally, therefore, a stipulation will only be set aside for good cause, such as fraud, collusion, mistake, accident, or some other ground of the same nature.” Sanders, supra, at 352, 543 N.Y.S.2d 67 (internal quotation omitted). Plaintiff does not allege any of these bases for setting aside the Stipulation of Settlement in this case.
Even if Rio did not intend to dispense completely with judicial oversight of a settlement agreement, the Stipulation of Settlement in this case satisfied the requirement for judicial oversight. “[A]n acknowledgment is not required to enforce a written stipulation of settlement subscribed by the parties and so ordered by the court ...”. Acito, supra, 72 A.D.3d at 494, 898 N.Y.S.2d 133. The parties' Stipulation of Settlement complies with the requirement of CPLR § 2104 that it be “in a writing subscribed by [them] ...”. Luisi v. Luisi, 244 A.D.2d 464, 464, 664 N.Y.S.2d 346 [2nd Dept.1997] (“CPLR 2104 states that to be enforceable, a stipulation, unless reduced to the form of an order and entered, must be in writing and signed by a party or his attorney.”). This Court exercised its oversight when it reviewed the divorce documents and signed the Judgment of Divorce, which incorporated but did not merge the Stipulation of Settlement.
Defendant claims that the parties' affidavits attached to the Stipulation of Settlement “are identical to the void [sic] dire employed in open court to determine that a stipulation is knowing and voluntary”. Although the parties made similar statements to those that are generally made during a court's allocution of the parties on the terms of their settlement, their affidavits cannot replace an open court stipulation. The Court is more than a functional equivalent of a notary.
This is true despite the mislabeling of the child support payments as maintenance, an error perpetuated by both counsel who submitted the divorce documents.
Moreover, even if Section 236(B)(3) applied to the Stipulation of Settlement, it would only require invalidation of the equitable distribution portion of the agreement, because “the requirement for a signed, acknowledged writing applies only to stipulations which effect equitable distribution.” Scheinkman, Practice Commentaries, McKinney's Cons. Laws of N.Y. Annotated, Book 14, C236B:18 at 185 (citing Kelly v. Kelly, 19 A.D.3d 1104, 797 N.Y.S.2d 666 [4th Dept.2005], appeal and reargument denied, 21 A.D.3d 1442, 801 N.Y.S.2d 555and appeal dismissed, 5 N.Y.3d 847, 805 N.Y.S.2d 547, 839 N.E.2d 901 [2005]and leave to appeal dismissed in part, denied in part, 6 N.Y.3d 803, 812 N.Y.S.2d 440, 845 N.E.2d 1270 [2006] ). The provisions of stipulations regarding other ancillary issues, such as custody, have been enforced, even where the equitable distribution portion has been invalidated for failing to satisfy the requirements of DRL § 236(B)(3). Kelly, supra.
Accordingly, this Court declines to permit Plaintiff's obvious collateral attack on his child support and other obligations he agreed to in the Stipulation of Settlement.
Ratification
Finally, Defendant argues that Plaintiff cannot challenge the Stipulation of Settlement, because “[b]y receiving the benefit of Defendant's compliance with the Stipulation of Settlement for nearly one and one half years, Plaintiff has ratified [the] Stipulation and waived any objection to the acknowledgment.” Memorandum of Law in Support of Motion to Dismiss at 8. Plaintiff certainly has enjoyed the benefits of the Stipulation of Settlement, which allowed him to maintain ownership of his business and retain all of the profits from it. He has also been able to keep his share of equitable distribution and pay Defendant her share according to a schedule of payments. Moreover, he has had joint custody and access to the parties' children in accordance with the schedule set out in the agreement, which he seeks to maintain even though he desires to set the Stipulation of Settlement aside in all other respects. “A party who accepts the benefits provided under a[n] agreement for any considerable period of time' is deemed to have ratified the agreement and thus, relinquishes the right to challenge that agreement'.” Rio, supra, at 1054, 974 N.Y.S.2d 491 (quoting Wasserman v. Wasserman, 217 A.D.2d 544, 544, 629 N.Y.S.2d 69 [2nd Dept.1995] ; see Kessler v. Kessler, 89 A.D.3d 687, 688, 931 N.Y.S.2d 702 [2nd Dept.2011] ; Cosh v. Cosh, 45 A.D.3d 798, 800, 847 N.Y.S.2d 136 [2nd Dept.2007] ). Accordingly, Plaintiff is also bound by the provisions in the Stipulation of Settlement which he now considers burdensome.
Attorney's Fees
Defendant requests an award of attorney's fees and costs related to bringing the motion to dismiss. She relies upon the provision in the Stipulation of Settlement which provides that “[i]f either Party is required to bring a judicial action or proceeding to enforce his or her rights under this Agreement and judgment is entered in favor of a Party, then the other Party shall pay the reasonable legal fees and expenses of such Party ...”. Stipulation of Settlement at Article XXI, ¶ 7.
The Court having determined that the Stipulation of Settlement is valid and that Defendant should prevail on her motion to dismiss, she is entitled to an award of attorney's fees and costs for defending against Plaintiff's action. Defendant seeks $10,380 for counsel fees and costs. Plaintiff does not address Defendant's request for attorney's fees and costs based upon the Stipulation of Settlement and he does not contest the amount of fees sought by Defendant. Upon review of Defendant's fee application, the Court grants an award of $8,000, which it deems to be a reasonable amount after considering all of the circumstances of this case. Plaintiff shall pay that amount directly to Defendant's counsel within 30 days of the date of this Decision and Order.
Defendant's moving papers sought $7,400 in fees. That amount ballooned to $10,380 based on counsel's receipt and review of Plaintiff's opposition and preparation of Reply papers.
Sanctions
Defendant also requests sanctions against Plaintiff for filing a frivolous action. The Court declines to award sanctions because the decision in Rio is subject to interpretation. As discussed earlier, Rio is not entirely clear whether judicial oversight of an agreement settling a divorce action is required to render it enforceable in a later divorce action between the same parties. As one commentator stated: “the facts [in Rio] are somewhat unusual and, in any event, the husband, who was bringing the challenge to the agreement, was also held to have ratified the agreement.” Scheinkman, Supplementary Practice Commentaries, 2014, McKinney's Cons. Laws of N.Y. Annotated, C236B:12. Although the decision in Rio supports Defendant's position and warrants dismissal of the action, the Court declines to award sanctions against Plaintiff, for it cannot be fairly said that no “reasonable argument for an extension, modification or reversal of existing law” could be made.
CONCLUSION
Defendant's motion to dismiss and application for attorney's fees are granted. This action is dismissed. In addition, Plaintiff shall pay $8,000 directly to Defendant's counsel within 30 days of the date of this Decision and Order.
Defendant's request for sanctions against Plaintiff is denied.
The foregoing constitutes the Decision and Order of this Court.