| Moran v Moran |
| 2010 NY Slip Op 07234 [77 AD3d 443] |
| October 12, 2010 |
| Appellate Division, First Department |
| Stephen Thomas Moran, Respondent, v Justine Clare Moran,Appellant. |
—[*1] Wolfson & Carroll, New York (Corey M. Shapiro of counsel), for respondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 15, 2009,which granted plaintiff's motion for appointment of a receiver for the purpose of effectuating the sale ofthe marital residence pursuant to the parties' separation agreement, unanimously reversed, on the lawand on the facts, without costs, and the matter remanded for further proceedings consistent herewith.Appeal from order, same court and Justice, entered March 3, 2010, unanimously dismissed, withoutcosts, as academic.
In this plenary action commenced to enforce a provision of a separation agreement prior tocommencement of a divorce action, the husband moved for an order appointing a receiver to effect thesale of the marital residence. The separation agreement provided that the wife would receive ownershipof the marital residence on the condition that she refinance the property by a certain date or sell it. Theagreement provided that, if refinancing were not obtained by the specified date, the property wouldimmediately be listed with a broker selected by the wife in her "sole discretion" and required her to "useefforts reasonably calculated to produce the best sales price available in the market for the expeditioussale of the Real Property."
In support of the motion, plaintiff's counsel averred that defendant had willfully obstructed the saleof the marital residence by selecting a listing price $200,000 higher than the property's fair market valueand refusing to discuss a floor price at which the property would be sold. Plaintiff's counsel relayedopinions of a broker who told him what the property was worth, but offered no evidence in admissibleform to establish market value. In opposition, defendant stated she had selected the proposed listingprice following discussion with the broker she selected, who submitted an affidavit stating the price wasreasonable and that he had potential buyers who were interested in viewing the property at that price.
The court issued interim orders directing the husband to have the property appraised andappointing an independent appraiser. The wife never received a copy of the independent appraisal,which the court represented was consistent with the husband's appraisal. The court found that the wifehad violated the separation agreement by listing the property at a price grossly in excess of anyappraised value, and therefore granted plaintiff's motion. Following settlement of an order on notice, thecourt issued an order appointing a receiver to effectuate the sale of the [*2]property, which authorized the receiver to list the property with anylicensed real estate broker at a listing price $44,000 over the appraised value and to accept an offer atthe appraised value within the first 60 days and at a price $50,000 below the appraised value after 120days.
It is well-settled that, prior to entry of a judgment altering the legal relationship between spouses bygranting divorce, separation or annulment, courts may not direct the sale of marital property held byspouses as tenants by the entirety, unless the parties have consented to sell (see Kahn v Kahn,43 NY2d 203 [1977]; Adamo vAdamo, 18 AD3d 407 [2005]; Jancu v Jancu, 241 AD2d 316 [1997]). When theparties have agreed to sell marital property prior to entry of a divorce judgment, the court "must respectconditions placed on a party's consent to the sale of such property" (Harrington v McManus,303 AD2d 368, 368 [2003]), and cannot set conditions on the sale which were not agreed to by theparties (see Harrilal v Harrilal, 128 AD2d 502, 503-504 [1987]; Shammah v Shammah, 22 Misc 3d822, 829 [Sup Ct, Nassau County 2008]). The court's order directing a sale of the maritalproperty through a broker chosen by a receiver, and at a price set by the court, improperly overrodethe parties' agreement that the wife would have "sole discretion" to select a broker, and supplied priceterms that were not agreed to by the parties in the separation agreement.
Moreover, plaintiff failed to make a clear evidentiary showing warranting the drastic remedy ofappointment of a receiver, which is to be invoked only where necessary for the protection of theparties, and upon a clear showing of a danger of irreparable loss (see Matter of Armienti &Brooks, 309 AD2d 659 [2003]; Serdaroglu v Serdaroglu, 209 AD2d 606 [1994]).Plaintiff did not show that he would suffer irreparable loss if a receiver were not appointed, and did notdispute that defendant was maintaining the property and making all required mortgage payments, so thatappointment of a receiver was not warranted (CPLR 6401). Assuming plaintiff established he wasentitled to specific enforcement of the sale agreement, that could be accomplished through a remedyless extreme and costly to defendant than appointment of a third-party receiver.
The case primarily relied on by plaintiff in support of the motion, Trezza v Trezza (32 AD3d 1016[2006]), provides no support for the relief granted in the instant case, since it was a post-judgmentenforcement action in which a former spouse was appointed receiver for the limited purpose ofeffectuating the sale of the former marital residence, at a price within the range agreed to by the parties,and upon a showing that the former husband had willfully obstructed the sale by refusing to execute acontract of sale at the agreed price (see also Stern v Stern, 282 AD2d 667, 668 [2001];see CPLR 5106). In this case, the court appointed a receiver with broad authority to sell theproperty at a price not agreed to by the parties, and the evidence did not establish willful obstruction bythe wife, but only disagreement as to the reasonable value of the property.
Reversal is also required because, although the parties did not object to the court's orders directingan appraisal and appointing an independent appraiser (see Domestic Relations Law §237; 22 NYCRR 202.18), they did not stipulate to be bound by the results of the appraisals. Thecourt, therefore, was required to afford the parties the opportunity to review the appraisals,cross-examine the appraisers and offer additional evidence on valuation (see Kesseler vKesseler, 10 NY2d 445, 451-452 [1962]; Banker v Banker, 56 AD3d 1105, 1107-1108 [2008]). In no eventcould the court rely on an appraisal report that was not provided to the parties and not made part of therecord (see Samuelsen v Samuelsen, 124 AD2d 650, 651-652 [1986]).
Defendant's additional contention that the motion court lacked jurisdiction over the [*3]instant action is without merit, since the Supreme Court is a court ofplenary jurisdiction (NY Const, art VI, § 7). Plaintiff properly commenced a plenary action toenforce the separation agreement, since no matrimonial action was then pending (see Singer vSinger, 261 AD2d 531, 532 [1999]). The court did not improvidently exercise its discretion bydenying defendant's request, made after it had rendered an oral decision on the motion, to transfer thiscase to the matrimonial part presiding over the divorce action that she commenced during the pendencyof this motion (see Briarpatch Ltd., L.P. vBriarpatch Film Corp., 68 AD3d 520 [2009]). However, following remand, if the divorceaction is still pending, this matter should be reassigned to the matrimonial part in the interests of judicialeconomy and efficiency. Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Acosta andRomÁn, JJ.