Opinion
XXXXX/2010
06-18-2015
EK, Plaintiff, v. RK, Defendant.
The Plaintiff-wife was represented by the office of Brian Perskin and Associates, P.C. The defendant-husband was represented by the office of Joseph Martin Carasso, Esq
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion/Cross Motion and
Affidavits (Affirmations) Annexed............................................... 1 /2 3/4 5/6
Reply/Opposition Affidavits (Affirmations).................................7, 8, 9 ,10
Papers Submitted ...................................................
Upon the forgoing papers, and after oral argument the Court finds as follows:
RK, Defendant-husband, has moved for an Order, pursuant to CPLR § 2221, seeking permission of the Court to renew and to reargue the prior Decision and Order of this Court dated October 27, 2014, upon the grounds that the Court may not have considered, or has overlooked or misapprehended relevant facts and law, and/or the Court did not consider new and additional facts. This Decision and Order directed the Defendant-husband to obtain and maintain life insurance policies in the sum of three million dollars ($3,000,000.00), which policies named his children as irrevocable beneficiaries. In the event that the Court determines that renewal and/or reargument is appropriate, the Defendant-husband seeks a further Order of this Court to reform the
Marital Stipulation of Settlement and Judgment of Divorce and revising the Court's Order dated October 27, 2014, by modifying the clause related to life insurance on Defendant-husband's life (with the parties children as beneficiaries) by reducing Defendant-husband's obligation to purchase and maintain said life insurance to the sum of two million two hundred and fifty thousand ($2,250,000.00) instead of the three million dollars ($3,000,000.00) provided in the subject Marital Stipulation of Settlement. The Defendant-husband has also moved for an Order of this Court which would provide clarification of the Marital Stipulation of Settlement with respect to the parking space at XXXXXXXX and issue an Order wherein the Defendant-husband would not be compelled to transfer title to the parking space to the Plaintiff-wife, as it was allegedly not mentioned in the Marital Stipulation of Settlement and it should be declared to be the separate property of the Defendant-husband. The Defendant-husband seeks a further Order of this Court to direct the Plaintiff-wife to remove any lis pendens or other encumbrances with respect to the parking space.
EK, Plaintiff-wife, has cross-moved, pursuant to CPLR § 5104, for an Order of this Court, to hold the Defendant-husband in contempt of Court, due to the failure of the Defendant-husband to abide by the terms of the Decision and Order of this Court dated October 27, 2014. In addition, counsel for the Plaintiff-wife seeks a further Order of this Court to compel the Defendant-husband to obtain, maintain and submit proof of having procured a life insurance policy in the amount of three million ($3,000,000.00) dollars, which policy names the parties children as sole irrevocable beneficiaries. The Plaintiff-wife further seeks an Order compelling the Defendant-husband to transfer title to parking space #46 at XXXXXXXX , Brooklyn, New York or to appoint her as the attorney-in-fact for the limited purpose of transferring title to the parking space; or in the alternative to order the Sheriff of the City of New York to transfer title to the parking space to the Plaintiff-wife. Finally, the Plaintiff-wife seeks an Order directing that counsel fees be ordered to be paid to the Plaintiff-wife by Defendant-husband pursuant to the terms of the Marital Stipulation of Settlement, as it is alleged that the Plaintiff-wife had to incur additional attorney's fees in seeking to enforce the terms of the Marital Stipulation of Settlement.
Background:
The parties were married in a civil ceremony on November 30, 1996 in New York City. There are two children of the marriage. The marriage was dissolved pursuant to a Marital Stipulation of Settlement ("the Stipulation of Settlement") dated January 11, 2012. The Stipulation of Settlement was incorporated, but not merged with the Judgment of Divorce, dated September 12, 2012, which Judgment was entered by the Clerk of the Court on October 11, 2012.
Pursuant to the Stipulation of Settlement, the Defendant-husband agreed to transfer title to the XXXXXXXX Condominium to the Plaintiff-wife, within thirty (30) days of Plaintiff-wife's request. It appears to be undisputed that following the Decision and Order of this Court dated October 27, 2014, the Defendant-husband transferred title to the subject premises (condo apartment) to the Plaintiff-wife, on or about November 14, 2014, by signing a quitclaim deed as well as completing and executing the necessary tax forms to complete the transaction.
Pursuant to the terms of the Stipulation of Settlement, the Defendant-husband was to obtain and/or maintain a life insurance policy in the minimum amount of three million ($3,000,000.00) dollars, which policy or policies were to name the parties' children as sole irrevocable beneficiaries. Defendant-husband was required to submit proof to the Plaintiff-wife on the 15th day of January of each year that the insurance policy was in effect and that all premiums had been paid. This issue still remains in dispute.
As to the claim for legal fees, Section XXIII of the Stipulation of Settlement provides that if either party shall default in the performance of any of the provisions of this Stipulation of Settlement or otherwise breach the Stipulation of Settlement and the non-breaching party shall institute and prevail in a legal proceeding to enforce the performance of the defaulting party, the defaulting party shall pay to the non-breaching party, the necessary and reasonable costs and expenses incurred by such party, including reasonable attorney's fees. It appears to be undisputed that a check in the sum of five thousand ($5,000.00) dollars was forwarded to the law office of BP, counsel for the Plaintiff-wife, by the Defendant-husband pursuant to the Court's prior Decision and Order dated October 27, 2014, but that Plaintiff-wife's counsel seeks additional attorney's fees to enforce the rights of his client, in relation to this motion.
Defendant-husband's contention:
The Defendant-husband contends that he has complied with the Order of this Court dated October 27, 2014, to the extent that he has been reasonably able to comply.
The Defendant-husband contends that he complied with the portion of the Order to transfer title to the condominium unit by executing a quitclaim deed to the Plaintiff-wife. In addition, the Defendant-husband paid Mr. P., the sum of $5,000.00, which represented legal fees, as directed by the Order of the Court.
As to the issue of the life insurance policy for the children, Defendant-husband maintains that on or about November 13, 2014, he submitted "irrevocable" designations for his current insurance policies. Defendant-husband avers that the three life insurance policies are as follows: (1) XXXXXXXX Insurance and Annuity Corporation (policy number XXXXXXXX ) in the amount of $750,000.00; (2) XXXXXXXX (policy number XXXXXXXX in the amount of $250,000.00); (3) XXXXXXXX Insurance Company of New York (policy number XXXXXXXX ) in the amount of $1,250,000.00. These policies in the aggregate total $2,250,000.00. The Defendant-husband asserts that he applied for and was rejected by twelve other insurance carriers and thus unable to purchase additional life insurance. Defendant-husband claims that the reason for having been denied additional coverage is that he is a party to litigation with XXXXXXXX Insurance Company, where there is an allegation of insurance fraud. Defendant-husband contends that this action is nothing more than an allegation and the claim is unproven. Defendant-husband further states that the Plaintiff-wife is aware of this action for fraud and is supportive of the Defendant-husband.
Defendant-husband maintains that having procured $2,250,000.00 in life insurance should be sufficient to cover his support obligations for his children. According to his calculations, his obligations to his children will not exceed $1,000,000.00, which is much less than the $2,250,000.00 he procured.
In addressing the issue of the parking space, Defendant-husband maintains that the parking unit is not mentioned in the Stipulation of Settlement. Title to the Parking Unit is solely in the name of the Defendant-husband, and since all property not specifically mentioned in Section IIIG of the Stipulation of Settlement is not subject to equitable distribution, the Plaintiff-wife waived her claim to any interest in the parking space. Defendant-husband maintains that when he purchased the subject condominium unit in 2003, he was offered the opportunity to purchase a parking space. He purchased the parking space, which was transferred to him pursuant to a separate deed. In addition he contends that there are separate maintenance and tax charges for the parking unit.
Defendant-husband maintains that since he is in compliance with the Stipulation of Settlement as well as the Order of this Court dated October 27, 2014, to the extent that it was reasonably possible, that he should not be subjected to the payment of any additional counsel fees to Plaintiff-wife.
Plaintiff-wife's contention:
The Plaintiff-wife, in her cross-motion, contends that the Defendant-husband continues to breach the terms of the Stipulation of Settlement and is not in full compliance. Specifically, the Court had ordered Defendant-husband to procure life insurance in the total amount of three million ($3,000,000.00) dollars, which has admittedly not been done to date. The Decision and Order dated October 27, 2014, was promptly mailed to the Defendant-husband on December 4, 2014, with notice of entry, resulting in the Defendant-husband having to procure the insurance policies and provide proof thereof within fifteen (15) days thereof.
As to the issue of the parking space, Plaintiff-wife maintains that reference to the XXXXXXXX Condo in the Stipulation of Settlement includes both the apartment and the parking space. Additionally, the By-laws of the XXXXXXXX condominium indicate that the residential unit and parking space unit are sometimes collectively referred to as units (see By-laws annexed as Exhibit "G" to the cross-motion of the Plaintiff-wife). In further support of her argument, counsel for the Plaintiff-wife contends that although the condominium apartment and the parking space are recorded under two separate deeds, the original contract of sale for XXXXXXXX included both the parking spot and condominium unit on one single contract. (A copy of the purchase agreement of July 2003 is annexed as Exhibit "H" to the cross-motion of the Plaintiff-wife). Additionally, counsel for the Plaintiff-wife asserts that the financial documents attributable to the property treat the parking space and residential units as one. Also the Plaintiff-wife avers that the mortgage for the property, which Plaintiff-wife states she has been making payments on for the past five years, allegedly includes both the parking space and the apartment. Finally, counsel for the Plaintiff-wife concedes that it is unclear whether the XXXXXXXX condo refers solely to the apartment, or the whole marital residence, which also includes the parking space. As such, counsel maintains that the Court must consider extrinsic evidence to determine the intent of the parties and upon doing so will find that the Parking Unit should be transferred to the Plaintiff-wife.
Discussion:
This Court has carefully considered the arguments presented by counsel for the respective parties in the motion by Defendant-husband to renew and reargue the prior Decision and Order of this Court dated October 27, 2014; Defendant-husband's motion for a clarification and interpretation of the parties Stipulation of Settlement with respect to the parking unit at XXXXXXXX; as well as the cross-motion of the Plaintiff-wife.
At issue, before this Court, is (1) whether the Stipulation of Settlement should be reformed resulting in the reduction of Defendant-husband's obligation to obtain and maintain life insurance from three million ($3,000,000.00) dollars to two million two hundred and fifty thousand ($2,250,000.00) dollars, and (2) whether any rights and/or interest to the parking unit at XXXXXXXX that is titled to Defendant-husband solely should be transferred to the Plaintiff-wife.
This Court initially considered the motion by Defendant-husband for renewal and/or reargument with respect to the determination of this Court in the Decision and Order dated October 27, 2014. This Court finds that as to the life insurance policies, it has not been presented with any proof that having policies valued at $2,250,000.00, instead of $3,000,000.00, would "suffice" for the purposes intended by the parties. Even assuming that the Court could glean from the document what the intent of the parties was, it cannot and should not look beyond the four corners of the document. The policy limits were clearly stated in the Stipulation of Settlement and the Court finds no basis to exercise its discretion to change it. Also, no persuasive evidence is provided as to attempts by Defendant-husband to obtain additional coverage or purported rejections. The Court finds that there was no proof presented that there was a mutual mistake between the parties and in the absence of such, the Court will enforce the terms of the Stipulation of Settlement. As such, the Defendant-husband is directed to provide proof to Plaintiff-wife of existing life insurance policies with an aggregate value of three million ($3,000,000.00) dollars, which name the parties' children as sole irrevocable beneficiaries within twenty (20) days of service of a copy of this Decision and Order upon Defendant- husband.
In further addressing the motion of Defendant-husband, a motion to renew is intended to permit a party to submit additional evidence which did not exist or which was not available on the return date of the original motion (see Feierstein v. Moser, 477 NYS2d 545, 124 Misc 2d 369 [1984]. It is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (see Joseph v. Simmons, 114 AD3d 644, 979 NYS2d 675 [2nd Dept. 2014]). The Court in Empire State Conglomerates v. Mahbur, 105 AD3d 898, 963 NYS2d 330 [2nd Dept. 2013]) determined that the trial court was within its discretion to deny a motion for leave to renew where no reasonable justification was offered for the failure to submit the proffered information in connection with the original motion. Here, the Defendant-husband has not offered any additional evidence which allegedly did not exist or which was not available at the time of the original motion except some evidence of attempts to procure insurance. This material does not reflect that Defendant-husband made exhaustive attempts or dealt directly with insurers. Moreover, it appears that Defendant-husband was seeking a new three million ($3,000,000.00) dollar policy rather than additional coverage that would result in coverage of three million ($3,000,000.00) dollars in the aggregate. As such, the motion to renew is denied.
This Court next considered the motion by Defendant-husband to reargue. A motion to reargue is based upon matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion. A motion for leave to reargue does not offer an unsuccessful party successive opportunities to present arguments different from those originally presented or not previously advanced. (See Pryor v. Commonwealth Land Title Ins. Co., 17AD3d 434, 793 NYS2d 452 (2nd Dept. 2005); Ahmed v. Pannon, 116 AD3d 802, 984 NYS2d 104 [2nd Dept. 2014]); Amato v. Lord & Taylor, Inc., 10 AD3d 374, 781 NYS2d 125 [2nd Dept. 2004]). Its purpose is not to serve as a vehicle for an unsuccessful party to argue once again the very questions previously decided (see Pro Brokerage, Inc. v. Home Ins. Co., 99 AD2d 971, 472 NYS2d 661 [1st Dept. 1984]). Here, the Defendant-husband argues that this Court may not have considered or has overlooked or misapprehended relevant facts and law when the Court determined that the Stipulation of Settlement should not be changed. Here, the Defendant-husband in support of this argument, has not raised any point of law that the Court failed to apply. The Defendant-husband offers the self-serving opinion of the Defendant-husband that life insurance valued at $2,250,000.00 is sufficient. Accordingly, that portion of the Motion which seeks reargument of the October 27, 2014 Decision and Order is denied.
In addressing the cross-motion of the Plaintiff-wife and the motion of the Defendant-husband pertaining to the parking space at XXXXXXXX , Brooklyn, New York, this Court carefully considered the Stipulation of Settlement (Paragraph F(1) pertaining to the XXXXXXXX Condominium), as well as those portions of the Bylaws of the Condominium, the Purchase Agreement and the Offering Plan, the latter of which are offered by counsel for Plaintiff-wife as exhibits in the Cross-motion. It is clear that the Stipulation of Settlement is silent as to the parking space and refers solely to the three bedroom, three bath condominium apartment. Counsel for Plaintiff-wife argues (in paragraph 16 of the cross-motion) that pursuant to paragraph 13 of the Offering Plan, "all parking privileges are automatically terminated upon the sale or transfer of the unit owner's residential unit". Although that language is contained in the Offering Plan, the language relates more to the rights of a Parking Unit Owner (that could arguably impact market value and use) but it is not dispositive of the issue of ownership interest in relation to the Residential Unit. In fact, it is not even necessarily supportive of Plaintiff-wife's position. In fact, counsel for the Plaintiff-wife concedes in paragraph 16 of the cross-motion "that it is unclear whether the XXXXXXXX Condo refers solely to the apartment, or the whole marital residence, which also includes the parking space", and that the Court should consider extrinsic evidence. Further, counsel for the Plaintiff-wife only offers a portion of the bylaws of the subject condo and submits a portion of the Offering Plan pertaining to garage spaces, which documents do not assist the Court in their attempt to ascertain whether there is a good and lawful reason to find that the garage space should be transferred to the Plaintiff-wife. The fact that the mortgage is secured by both the Residential and Garage Unit is of no moment. The mortgage spreader is not indicative or reflective of the intent of the parties as to any prohibition or requirement in relation to the parcels being transferred separately. The Parking Unit is a separate and distinct parcel. To the extent not specified in the agreement, it should remain with the title owner, the Defendant-husband. Whether the parcel is valuable, marketable or its transfer would diminish rights of the Owner is not a reason to determine that the Agreement provided that it should be transferred to the Plaintiff-wife. The Court also notes that Plaintiff's original motion only sought transfer of the Residential Unit. Stipulations of settlement which put an end to litigation are favored by courts and will rarely be set aside in the absence of fraud, collusion, mistake or some other factors as would undo a contract. (See Heimuller v. Amoco Oil Corp., 92 AD2d 882, 459 NYS2d 868 [2nd Dept. 1983]). As such, the cross-motion by Plaintiff-wife to direct the transfer of the garage space at XXXXXXXX , Brooklyn, New York to her, is denied. Defendant-husband's application for license fees is denied in that Defendant-husband has provided no support for the amount sought. However, Defendant-husband application for attorney's fees is granted due to Plaintiff-wife's failure to abide by the terms of the Stipulation in relation to the Parking Unit. As such, Counsel fees in the sum of $ 5,000.00 are awarded to the Defendant-husband.
As to the issue of whether the alleged failure of the Defendant-husband to abide by the terms of a Stipulation of Settlement (with respect to the life insurance policy and the transfer of the parking unit) is worthy of Defendant-husband being held in contempt, this Court has considered the four elements that are necessary for finding that such relief is appropriate. It must be shown that there is a deceit on the court; plaintiff's remedies are impaired, impeded or prejudiced; there is actual loss or damage caused to a plaintiff and there is no other remedy prescribed by law for the recoupment of such damages. (See Dollard v. Koronsky, 61 Misc. 392, 113 NYS793 (1908). Pursuant to Judiciary Law §753(a)(3), the movant bears the burden of proving contempt by clear and convincing evidence. (See Wheels America New York, Ltd. v. Montalvo, 50 AD3d 1130, 856 NYS2d 247 [2nd Dept. 2008]; Dankner v. Steefel, 41 AD3d 526, 838 NYS2d 601 [2nd Dept. 2007]). Here, the Court finds that while the terms of a Stipulation of Settlement should have been adhered to, the Defendant-husband has not been shown, based on the evidence before this Court, to have acted in a contemptuous manner, requiring a hearing of the matter. However, Counsel Fees in the sum of $ 5,000.00 are awarded to the Plaintiff-wife, due to the Defendant-husband's clear failure to abide by the Court's Order dated October 27, 2014, with respect to the Life Insurance Coverage required.
Conclusion:
Based upon the foregoing, the motion by RK, Defendant-husband, for an Order, pursuant to CPLR § 2221, seeking permission of the Court to renew and to reargue the prior Decision and Order of this Court dated October 27, 2014, upon the grounds that the Court may not have considered, or had overlooked or misapprehended relevant facts and law, and/or the Court did not consider new and additional facts is denied. The motion by Defendant-husband to provide clarification of the Marital Stipulation of Settlement with respect to the parking space a XXXXXXXX , Brooklyn, New York, is granted to the extent that said property shall remain the separate property of the Defendant-husband and any lis pendens or encumbrances thereon by or on behalf of the Plaintiff-wife shall be removed from the property by Plaintiff-wife within twenty (20) days after the date of this Order.
Defendant-husband's application for license fees is denied in that Defendant-husband has provided no support for the amount sought. However, Defendant-husband application for attorney's fees is granted due to Plaintiff-wife's failure to abide by the terms of the Stipulation in relation to the Parking Unit. As such, Counsel fees in the sum of $ 5,000.00 are awarded to the Defendant-husband.
As to the cross-motion of the Plaintiff-wife, the Defendant-husband is directed to provide proof to Plaintiff-wife of existing life insurance policies with an aggregate value of three million ($3,000,000.00) dollars, which name the parties' children as sole irrevocable beneficiaries within twenty (20) days of service of a copy of this Decision and Order upon Defendant-husband. The portion of the cross-motion which seeks to hold the Defendant-husband in contempt of Court is denied, however Plaintiff-wife's application for additional attorney's fees from the Defendant-husband is granted in the sum of $5,000.00., in relation to the Life Insurance Coverage.
This constitutes the Decision and Order of the Court.
Date: June 18, 2015
ENTER:
_________________________
Carl J. Landicino
J.S.C.