| Potter v Potter |
| 2014 NY Slip Op 02915 [116 AD3d 1021] |
| April 30, 2014 |
| Appellate Division, Second Department |
| Elham Cohanim Potter, Respondent, v NoahPotter, Appellant. |
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In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisbrief, from stated portions of an order of the Supreme Court, Nassau County (Maron, J.),entered May 31, 2011, which, among other things, granted that branch of the plaintiff'smotion which was to compel him to pay, pendente lite, one half of the outstanding realestate taxes owed to the County of Nassau on the former marital residence, pursuant toparagraph four of a stipulation between the parties, and denied that branch of his crossmotion which was to vacate paragraph four of the parties' stipulation.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
The parties were married in 1997 and have two children. The plaintiff commencedthis action for a divorce and ancillary relief, and on June 1, 2001, the parties executed astipulation which was "so ordered" by the Supreme Court. The stipulation, inter alia,provided for a partial settlement of the equitable distribution of the marital assets.Paragraph four of the stipulation, entitled "Pendente Lite Payments," provided that,pendente lite, the parties "shall equally pay," among other things, the real estate taxes onthe marital residence.
The plaintiff moved, inter alia, to direct the defendant, pursuant to paragraph four, topay one half of the outstanding real estate taxes owed to the County of Nassau on theformer marital residence. The defendant opposed the motion and cross-moved, amongother things, to vacate paragraph four, arguing that paragraph four was unenforceable onthe grounds that it was unconscionable, and was based on fraud because, inter alia, theplaintiff had concealed assets by failing to disclose the existence of a certain bankaccount prior to or at the time the stipulation was entered into.
In the order appealed from, the Supreme Court determined that the defendant failedto comply with CPLR 2214 (a), and stated that it would "not consider the merits of thepurported cross motion." The Supreme Court, inter alia, granted that branch of theplaintiff's motion which was to compel the defendant to pay one half of the outstandingreal estate taxes owed to the County of Nassau on the former marital residence. Thedefendant appeals, contending, among other things, that his cross motion complied withCPLR 2214 (a), and that this Court should vacate paragraph four, or the entirestipulation, as the plaintiff concealed some of her assets.
"A stipulation of settlement should be closely scrutinized and may be set aside upon[*2]a showing that it is unconscionable or the result offraud, or where it is shown to be manifestly unjust because of the other spouse'soverreaching" (Cruciata vCruciata, 10 AD3d 349, 350 [2004]; see Christian v Christian, 42 NY2d63, 72-73 [1977]; Santini vRobinson, 68 AD3d 745, 749 [2009]). Here, the Supreme Court properlygranted the subject branch of the plaintiff's motion because the plaintiff demonstratedthat the defendant failed to pay one half of the outstanding real estate taxes owed to theCounty of Nassau on the former marital residence.
The Supreme Court erroneously determined that the defendant's notice of crossmotion did not comply with CPLR 2214 (a) (see Matter of Blauman-Spindler v Blauman, 68 AD3d1105, 1106 [2009]). Nevertheless, the denial of that branch of the defendant's crossmotion which was to vacate paragraph four of the stipulation was appropriate as thedefendant's submissions did not establish that paragraph four of the stipulation should bevacated on the ground of unconscionability or fraud. The defendant's remedy for anyperceived inequity with respect to his pendente lite obligation under paragraph four ofthe stipulation is to seek a speedy trial (see Iwanow v Iwanow, 39 AD3d 471, 472 [2007]).
The defendant's contention that the entire stipulation should be vacated, raised forthe first time on appeal, is not properly before this Court (see Mortgage Elec. RegistrationSys., Inc. v Korolizky, 100 AD3d 605, 606 [2012]; Joe v Upper Room Ministries,Inc., 88 AD3d 963, 964 [2011]).
The defendant's remaining contentions are without merit. Rivera, J.P., Dickerson,Leventhal and Hall, JJ., concur.
Motion by the respondent on an appeal from an order of the Supreme Court, NassauCounty, entered May 31, 2011, inter alia, to dismiss the appeal, in effect, on the groundthat the appellant is not aggrieved. By decision and order on motion of this Court datedFebruary 8, 2013, the branch of the motion which was to dismiss the appeal was held inabeyance and referred to the panel of Justices hearing the appeal for determination uponthe argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeal, it is
Ordered that the motion is denied. Rivera, J.P., Dickerson, Leventhal and Hall, JJ.,concur.