Murphy v Weitz

[*1] Murphy v Weitz 2015 NY Slip Op 50579(U) Decided on April 23, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 23, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
570725/14

Karen L. Murphy, Plaintiff-Appellant, -

against

Marvin B. Weitz, Defendant-Respondent.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Gerald Lebovits), entered on or about October 29, 2013, after trial, in favor of defendant dismissing the action.

Per Curiam.

Judgment (Gerald Lebovits, J.), entered on or about October 29, 2013, affirmed, without costs.

Applying the narrow standard of review governing appeals in small claims actions (see CCA 1807), and giving due deference to the trial court's findings of fact and credibility (see Williams v Roper, 269 AD2d 125, 126 [2000], lv dismissed 95 NY2d 898 [2000]), we sustain the dismissal after trial of plaintiff's action against her former husband, defendant Marvin Weitz, for the balance owed on a December 2010 promissory note executed by defendant during the parties' marriage. The evidence, fairly interpreted, supports the court's finding that plaintiff's claim is barred by the terms of the parties' prenuptial agreement that were incorporated but not merged into the January 2012 judgment of divorce (see Strong v Dubin, 75 AD3d 66 [2010]). That agreement resolved, inter alia, "causes of action of whatever nature . . . which either party may have against the other," except for "intentional torts which occur after the execution of this Agreement." Nor in the particular circumstances present, do we have any basis to disturb the court's finding that defendant's actions, including his single post-divorce judgment payment on the note and his cryptic July 2012 email, did not constitute an absolute and unqualified acknowledgment that additional payments on the note were due, from which a promise may be inferred to pay the remainder (see generally Lew Morris Demolition Co. v Board of Educ. of City of NY, 40 NY2d 516 [1976]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 23, 2015