| Banker v Banker |
| 2008 NY Slip Op 09331 [56 AD3d 1105] |
| November 26, 2008 |
| Appellate Division, Third Department |
| Michele R. Banker, Respondent, v Arnold L. Banker,Appellant. |
—[*1] Cliff Gordon, Monticello, for respondent.
Spain, J. Appeal from an order of the Supreme Court (Peckham, J.), entered August 16, 2007in Delaware County, which, among other things, appointed a receiver of certain real propertyowned by the parties.
The parties to this action were divorced by a judgment entered in 2005. An oral stipulation ofsettlement, which was incorporated but not merged into the divorce judgment, provided that theparties would subdivide a parcel of property located in the Town of Colchester, DelawareCounty. In response to a motion by plaintiff to enforce the stipulation, Supreme Court—inFebruary 2006—ordered defendant to, among other things, obtain subdivision approvalfrom the Town of Colchester Planning Board. The Planning Board denied defendant's subsequentsubdivision application upon discovering that the property was encumbered by a restrictivecovenant against further subdivision.[FN1] In light of this obstacle, in March 2006, defendant moved to reargue and/or renew SupremeCourt's [*2]February 2006 order and requested, among otherthings, a hearing to determine equitable distribution.
Supreme Court did not rule on defendant's motion, but reserved decision on all pendingmatters pertaining to the parties until an appraisal of the property was completed. Because theparties could not agree on an appraiser, the court appointed one and challenged the parties, oncethe appraisal was complete, to settle the matter in a private auction or buyout. The appraisercompleted two appraisals in June 2006, one valuing the entire 9.84-acre property and the otherthe 1.63-acre portion improved by a house. By letter dated October 4, 2006, defendant requestedthe opportunity to offer further proof of value. Defendant made a similar request by letter to thecourt dated January 19, 2007 and explained that the parties had not been able to settle the matteror agree on a private auction. Plaintiff responded with a motion seeking that the parties' interestsin the property be declared in conformance with the terms set forth in the stipulation and thevalues established in the appraisal, as well as an order allowing her to buy out defendant's shareof the property. Defendant opposed the motion, arguing that the appraisal should not be adoptedwithout an opportunity by the parties to cross-examine the appraiser and submit other evidence ofvaluation. Supreme Court ordered a hearing to permit the parties to cross-examine the appraiser,but made it clear that no other testimony or evidence of valuation would be permitted.
Following the hearing—at which Supreme Court again denied defendant's request tosubmit further evidence—the court determined the interests of the parties in the property tobe 83% for plaintiff and 17% for defendant. After giving the parties one last opportunity to settlethe matter, the court, in August 2007, fixed the parties' interests as indicated above, appointed areceiver, and ordered the public sale of the property. Defendant appeals.
Initially, we find no merit in the procedural objections made by either party on appeal.Contrary to plaintiff's arguments, the issues that defendant raises on appeal are properlyreviewable as they were issues decided by nonfinal letter orders which necessarily affected theAugust 2007 final order appealed from (see CPLR 5501 [a] [1]; Sparkling Waters Lakefront Assn., Inc. vShaw, 42 AD3d 801, 802 n 1 [2007]). Likewise, we reject defendant's challenge toSupreme Court's failure to explicitly rule on his March 2006 motion to reargue and/or renew thecourt's February 2006 order directing him to pursue subdivision of the property. In his motion,defendant sought to have the court modify its order in light of the discovered deed restrictions onsubdivision and for the matter to proceed for a determination of equitable distribution. AlthoughSupreme Court did not directly address the motion, it implicitly vacated its February 2006 orderwhen it ordered the appraisal, held the hearing and ultimately appointed a receiver and directed asale. Accordingly, defendant's objections to Supreme Court's alleged inaction on his March 2006motion are moot (see Matter of Castell vCity of Saratoga Springs, 3 AD3d 774, 776 [2004]).
Further, we reject defendant's argument that Supreme Court exceeded its authority byreforming the parties' stipulation of settlement. Where, as here, a mutual mistake rendered aportion of the parties' settlement agreement impossible or impracticable, "the relevant settlementprovision was properly set aside" (Brender v Brender, 199 AD2d 665, 666[1993]).[FN2] No dispute exists that the [*3]parties' agreement to physicallydivide the property cannot occur given the restrictive covenant; indeed, defendant is notattempting to have the parties' stipulation enforced. Thus, after giving the parties ampleopportunity to reach a new agreement, we discern no error in Supreme Court's decision to moveforward by appointing an appraiser so that an equitable distribution of the property—in asclose accordance as possible with the intent of the parties as expressed in theirsettlement—could be achieved.
We find merit, however, in defendant's argument that the issue should not have been resolvedwithout a full hearing permitting the parties to offer proof of valuation. Certainly the court isauthorized to appoint an independent appraiser in a matrimonial action (see DomesticRelations Law § 237; 22 NYCRR 202.18) but, unless the parties have stipulated otherwise,the court must afford the parties the opportunity to review the appraisal, cross-examine theappraiser and offer additional evidence on valuation (see Kesseler v Kesseler, 10 NY2d445, 451-452 [1962]; Matter of Johnson v Johnson, 21 AD2d 256, 259-260 [1964];see also Di Stefano v Di Stefano, 51 AD2d 885, 886 [1976]; accord Zirinsky vZirinsky, 138 AD2d 43, 46 [1988]; Samuelsen v Samuelsen, 124 AD2d 650, 652[1986]). Although the record contains evidence that the parties consented to Supreme Court'sappointment of the appraiser, it does not suggest that the parties agreed to be bound by theresulting appraisal.
We have considered defendant's remaining contentions and find them to be without merit.
Mercure, J.P., Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the order isreversed, on the law, without costs, and matter remitted to the Supreme Court for a fullevidentiary hearing to determine the valuation of the parcels identified in the parties' stipulationof settlement.
Footnote 1: The Planning Board laterreversed its denial of the application on the basis that the Town should not enforce a privatecovenant. However, it is undisputed that the landowners who benefit from the covenant areunwilling to waive it, rendering subdivision infeasible as it would subject the parties to suit.
Footnote 2: We note that to achievereformation or recision of the stipulation of settlement, one of the parties should havecommenced a plenary action, rather than proceeding by motion (see Brender v Brender,199 AD2d at 666 n 2) but, in the context of this matter, we conclude the defect to be nonfatal(see CPLR 2001).