| Woronoff v Woronoff |
| 2010 NY Slip Op 01479 [70 AD3d 933] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Keith Woronoff, Respondent, v Deborah Woronoff,Appellant. |
—[*1] Greher Law Offices, P.C., New Windsor, N.Y. (John A. McHugh of counsel), forrespondent.
In an action to recover damages for wrongful procurement of a judgment, the defendantformer wife appeals, as limited by her notice of appeal and brief, and by stipulation of theparties, from so much of an order of the Supreme Court, Orange County (Owen, J.), datedFebruary 5, 2009, as granted that branch of the plaintiff former husband's motion which was todismiss, as time-barred, her first counterclaim to recover damages for his alleged breach of theparties' judgment of divorce dated December 21, 1998.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties were divorced by judgment dated December 21, 1988, which provided, inter alia,that the plaintiff would pay the defendant the sum of $87,500 for her share of his businesses. In1990 the parties entered into an agreement which modified this portion of the judgment so as to,among other things, set forth a different payment schedule for the distributive award. Thisagreement was not reduced to a court order. The defendant never entered her distributive awardas a money judgment nor sought to enforce collection thereof until 2007, when she obtained aclerk's judgment against the plaintiff. Thereafter, however, the plaintiff successfully moved tovacate the clerk's judgment.
The plaintiff then commenced this action, inter alia, to recover damages for wrongfulprocurement of the clerk's judgment including the counsel fees he expended in moving to vacatethe clerk's judgment. The defendant's first counterclaim asserted that the plaintiff had failed payher the full amount of her distributive award for her share of his business, and alleged damagesresulting therefrom in excess of $150,000. Insofar as is pertinent to this appeal, the orderappealed from granted the plaintiff's motion to dismiss this counterclaim as time-barred. Weagree.
Contrary to the defendant's contention, the distributive award made to her in the divorcejudgment for her share of the plaintiff's business was not a "money judgment" subject to a20-year statute of limitations (Tauber v Lebow, 65 NY2d 596, 598 [1985]; seePatricia A.M. v Eugene W.M., 24 Misc 3d 1012 [2009]). Instead, her claim to enforce thisaward was governed by the six-year statute of limitations set forth [*2]in CPLR 213 (1) and (2) (see Tauber v Lebow, 65 NY2d596 [1985]; Duhamel v Duhamel, 188 Misc 2d 754 [2001], affd 4 AD3d 739[2004]; see also Dolan v Ross, 172 AD2d 1013 [1991]). Accordingly, since thedefendant did not seek to enforce her distributive award nor reduce it to a money judgment untilwell beyond six years after the divorce judgment was entered, and even well beyond six yearsafter the parties entered into their modification agreement, the Supreme Court properlydismissed this counterclaim as time-barred.
The defendant's remaining contentions are without merit. Covello, J.P., Santucci, Miller andLott, JJ., concur.