| Schiller v Guthrie |
| 2013 NY Slip Op 00321 [102 AD3d 852] |
| January 23, 2013 |
| Appellate Division, Second Department |
| Gerard M. Schiller et al.,Appellants-Respondents, v Debra S. Guthrie,Respondent-Appellant. |
—[*1] Krauss PLLC, White Plains, N.Y. (Geri S. Krauss of counsel), forrespondent-appellant.
In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court,Westchester County (Tolbert, J.) entered January 11, 2012, as granted that branch of thedefendant's motion which was for summary judgment dismissing the complaint, and thedefendant cross-appeals from so much of the same order as denied that branch of hermotion which was for an award of an attorney's fee or sanctions.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, withcosts payable to the defendant.
During the marriage of the plaintiff Gerard M. Schiller (hereinafter the formerhusband) and the defendant Debra S. Guthrie (hereinafter the former wife), they operateda joint medical practice from 1987 through 2006. In September 2006, the former wifecommenced an action for divorce and ancillary relief against the former husband. InApril 2008, the former husband and former wife entered into a stipulation of settlement.The stipulation, which was placed on the record and so-ordered by the court, wasincorporated but not merged into the judgment of divorce.
In 2011 the former husband, on behalf of himself and the former joint medicalpractice, "Gerard Schiller, MD & Debra S. Guthrie, MD, a NY Partnership-at-Will"commenced this action, alleging that he and the former wife had operated their formermedical practice as a general partnership and that the partnership had improperly filed itstax returns as a sole proprietorship for the period of January 1, 2006, through October 31,2006. He further alleged that he paid $21,029.25 in additional taxes and $57,215.16 inprofessional fees on behalf of the partnership to correct the error. As a result, theplaintiffs demanded, inter alia, that the former wife pay her pro rata share of thosepartnership expenses.
Contrary to the plaintiffs' contentions, the Supreme Court properly granted thatbranch of the former wife's motion which was for summary judgment dismissing thecomplaint on the ground that it was barred by a general release contained in thestipulation, which resolved the [*2]prior matrimonialaction between the former wife and former husband. " 'A release is a contract, and itsconstruction is governed by contract law' " (Cardinal Holdings, Ltd. v Indotronix Intl. Corp., 73 AD3d960, 962 [2010], quoting Lee v Boro Realty, LLC, 39 AD3d 715, 716 [2007];Kaminsky v Gamache, 298 AD2d 361, 361 [2002]). "Where a release isunambiguous, the intent of the parties must be ascertained from the plain language of theagreement" (Kaminsky v Gamache, 298 AD2d at 361; see Chaudhry vGarvale, 262 AD2d 518, 519 [1999]). Here, in support of that branch of her motion,the former wife established her prima facie entitlement to judgment as a matter of law bysubmitting the release contained in the stipulation. The clear and unambiguous languageof the release resolved and released all claims that "have been brought or could havebeen brought" by the former wife and former husband. The release contained only twoexceptions, neither of which applies to the claims asserted by the plaintiffs in this action.Viewed in its entirety, the terms of the stipulation make clear that it was intended tocover and resolve all relevant issues between the former wife and the former husband,including the financial issues concerning their joint medical practice that are raised by theplaintiffs in this action (seeTrama v Eugene & Shirley Drach Realty Corp., 37 AD3d 454, 455 [2007]).
In opposition, the plaintiffs failed to raise a triable issue of fact as to whether therelease barred them from maintaining this action (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]). The plaintiffs' remaining contentions regarding what therelease encompasses, which were not raised in opposition to that branch of the formerwife's motion which was for summary judgment, are not properly before this Court (see Lee v Port Chester CostcoWholesale, 82 AD3d 842, 842 [2011]; Fletcher v Westbury Toyota, Inc., 67 AD3d 730, 730-731[2009]). Accordingly, the Supreme Court properly granted that branch of the formerwife's motion which was for summary judgment dismissing the complaint.
The Supreme Court properly denied that branch of the former wife's motion whichwas for an award of an attorney's fee or sanctions, as she failed to establish herentitlement to that relief. Mastro, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.