| Shah v Shah |
| 2012 NY Slip Op 07653 [100 AD3d 734] |
| November 14, 2012 |
| Appellate Division, Second Department |
| Sunil Shah, Appellant, v Sarita Shah,Respondent. |
—[*1] Michael Catalanotto, P.C., St. James, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Suffolk County (Cohen, J.), dated May28, 2010, which, after a nonjury trial, inter alia, awarded the defendant 30% of his interest inHi-Tech Trading (USA), Inc., and spousal maintenance in the sum of $4,000 per month for aperiod of four years.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
In determining the equitable distribution of marital property, the court may consider "anytransfer or encumbrance made in contemplation of a matrimonial action without fairconsideration" (Domestic Relations Law § 236 [B] [5] [d] [13]; see Buchsbaum vBuchsbaum, 292 AD2d 553, 554 [2002]). Contrary to the plaintiff's contention, in equitablydistributing the parties' assets, the Supreme Court properly considered his interest in a business,known as Hi-Tech Trading (USA), Inc. (hereinafter Hi-Tech), which was started by the plaintiffand a partner during the marriage, and was purportedly transferred by the plaintiff to his partnershortly before commencement of this action for no consideration (see DeGroat v DeGroat, 84 AD3d1012, 1014 [2011]; Xikis vXikis, 43 AD3d 1040, 1042 [2007]; Buchsbaum v Buchsbaum, 292 AD2d at554).
" 'Property acquired during the marriage is presumed to be marital property and the partyseeking to overcome such presumption has the burden of proving that the property in dispute isseparate property' " (Steinberg vSteinberg, 59 AD3d 702, 704 [2009], quoting Judson v Judson, 255 AD2d 656,657 [1998]; see D'Angelo vD'Angelo, 14 AD3d 476, 477 [2005]; Farag v Farag, 4 AD3d 502, 503 [2004]). Here, contrary to theplaintiff's contention, there was no showing or finding that funds he allegedly invested in HighTech were his separate property, and, thus, his interest in Hi-Tech was properly equitablydistributed.
Under the circumstances of this case, the plaintiff's contention that the Supreme Courtengaged in "double counting" with respect to the award of maintenance is without merit, as theplaintiff's businesses constituted tangible, income-producing assets, rather than intangible assets(see Keane v Keane, 8 NY3d115, 119 [2006]; Weintraub vWeintraub, 79 AD3d 856, 857 [2010]; Kerrigan v Kerrigan, 71 AD3d 737, 738 [2010]).[*2]
The plaintiff's remaining contentions are without merit.Skelos, J.P., Balkin, Roman and Sgroi, JJ., concur.