| Masella v Masella |
| 2009 NY Slip Op 08190 [67 AD3d 749] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Linda Masella, Respondent, v Dominick Masella,Appellant. |
—[*1] Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, LakeSuccess, N.Y. (Samuel J. Ferrara and Mitchell H. Levitin of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated November20, 2008, as denied those branches of his motion which were to determine that the proceeds ofhis disability insurance policies and his Social Security disability benefits, as well as the maritalresidence, are his separate property.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the defendant's motion which were to determine that the proceeds of his disabilityinsurance policies and his Social Security disability benefits, as well as the marital residence, arehis separate property, are granted.
Despite the plaintiff's contentions to the contrary, the proceeds of the defendant's disabilityinsurance policies are his separate property (see Domestic Relations Law § 236[B] [1] [d]; Bernstein v Bernstein,18 AD3d 683, 684 [2005]; Gann v Gann, 233 AD2d 188 [1996]; Fleitz vFleitz, 200 AD2d 874 [1994]; Solomon v Solomon, 206 AD2d 971 [1994]).Similarly, the proceeds of the defendant's Social Security disability benefits also are his separateproperty, and are not subject to equitable distribution (see Wallach v Wallach, 37 AD3d 707, 709 [2007]; Principe vPrincipe, 229 AD2d 522, 523 [1996]; Fleitz v Fleitz, 200 AD2d 874 [1994]). Attrial, the plaintiff may present her claim that the defendant commingled his various separatefunds with marital funds. The defendant may seek to rebut the presumption that any commingledfunds became marital property by tracing out the source of the funds with sufficient [*2]particularity (see Massimi v Massimi, 35 AD3d 400, 402 [2006]; Wade v Steinfeld, 15 AD3d 390,391 [2005]).
Moreover, on appeal, the plaintiff, in effect, correctly concedes that the marital residence isthe defendant's separate property (seeKilkenny v Kilkenny, 54 AD3d 816, 818 [2008]). The contributions of a spouse torenovations of a home owned separately by the other spouse does not transform the house intomarital property (see Embury vEmbury, 49 AD3d 802, 804 [2008]). Both parties correctly contend that the issue of thealleged marital nature of any appreciation during the marriage in the value of the maritalresidence remains to be resolved at trial (see Kilkenny v Kilkenny, 54 AD3d at 818-819;Guskin v Guskin, 18 AD3d814, 815 [2005]). Dillon, J.P., Dickerson, Belen and Roman, JJ., concur.