H.H. v S.H.

[*1] H.H. v S.H. 2006 NY Slip Op 51496(U) [12 Misc 3d 1189(A)] Decided on July 28, 2006 Supreme Court, Dutchess County Pagones, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2006
Supreme Court, Dutchess County

H.H., Plaintiff,

against

S.H., Defendant.



XXXX



TO: KATHRYN S. LAZAR, ESQ.

LAZAR & SCHWARTZ, ESQS.

Attorneys for Plaintiff

280 Route 82

Hopewell Junction, New York 12533

BARRY H. FRIEDMAN, ESQ.

Attorney for Defendant

224 Church Street

Poughkeepsie, New York 12601

James D. Pagones, J.

The plaintiff moves for summary judgment in this action for divorce. The defendant cross-moves for an order "enforcing and compelling the plaintiff's conveyance of the marital residence to the defendant;" for an order striking the plaintiff's note of issue; and, for leave to serve a "supplemental verified answer and counter-claim." The plaintiff commenced this action on August 24, 2004 by filing a summons and complaint asserting his entitlement to a divorce pursuant to DRL §170(6). The plaintiff's complaint demanded judgment dissolving the parties' marriage, incorporating but not merging a separation agreement in the judgment and "referring all future matters relating to custody, visitation, child support and maintenance to the Family Court, State of New York." The plaintiff subsequently amended his complaint to add a cause of action based on constructive abandonment, but made no modifications to the prayer for relief.

AMENDED ANSWER

The defendant moves for leave to serve a "supplemental" verified answer and counterclaim. CPLR Rule 3025 permits a party to amend a pleading or supplement it by setting forth additional or subsequent transactions or occurrences by leave of court which "shall be freely given upon such terms as may be just." The defendant has not submitted a proposed verified amended answer as required. Instead, counsel asks leave to serve a "supplemental answer which will assert, among other claims, the right to specific performance of the Agreement of November 16, 2005." It has been held that a decision to grant or deny leave to amend is within the court's discretion and that such exercise shall not be lightly disturbed. (Duffy v. Bass & D'Allesandro, Inc., 245 AD2d 333 [2d Dept. 1997]. Although the Court has broad discretion in determining such an application, it must consider any potential prejudice to defendants, any inordinate delay and whether the proposed amendment lacks merit. (Noanjo Clothing, Inc. v. L & M Kids Fashion, Inc., 207 AD2d 436 [2d Dept. 1994].) I am required to examine the merit of each allegation raised in a proposed amended pleading. (NAB Construction Corp. v. Metropolitan Transportation Authority, 167 [*2]AD2d 301 [1st Dept. 1990].) The defendant's failure to submit a proposed verified answer containing the counterclaim which counsel vaguely describes prevents me from reviewing the merits of the proposed claim. Therefore, it is ordered that the defendant's motion for leave to serve an amended or supplemental answer and counterclaim is denied.

SUMMARY JUDGMENT

It is well settled that in order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)

DRL §170(2) provides grounds for a divorce based upon the abandonment of the plaintiff by the defendant for a period of one or more years. The plaintiff's complaint alleges abandonment based on the doctrine of constructive abandonment which amounts to an unjustified failure to engage in sexual relations for a period of more than one year. (Diemer v. Diemer, 8 NY2d 206 [1960].) It has been held that to establish grounds based on constructive abandonment, the conduct must be unjustified, willful and continuous despite repeated requests from the other spouse to resume marital relations. (Silver v. Silver, 253 AD2d 756 [2d Dept. 1998].) The plaintiff avers, on this motion, that the defendant "without cause or justification and without my consent, has refused to have sexual relations with me for a period of one or more years prior to the commencement of this action." The plaintiff has established, on a prima facie basis, his entitlement to a judgment of divorce pursuant to DRL §170(2). In response to this motion, the defendant avers, inter alia, that the plaintiff advised her in the Fall of 2005 that he would be giving up his apartment in January, 2006 to move in with his partner "with whom he had had a homosexual relationship since January, 2005." I find that the defendant has established that there are triable issues of fact regarding the issue of whether she constructively abandoned the plaintiff. Therefore, it is ordered that the plaintiff's application for a judgment of divorce based on the grounds set forth in DRL §170(2) is denied.

DRL §170(6) provides grounds for a divorce if: "The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides."

On this application, the plaintiff has established, on a prima facie basis, that the parties have entered into a written agreement entitled "Separation and Property Settlement Agreement" [*3]which has been duly subscribed by the parties, acknowledged and recorded in the office of the Dutchess County Clerk. The plaintiff avers on this application that he has substantially performed all the terms and conditions of the agreement and that more than one year has passed since the execution of the agreement. I find that the plaintiff has established, on a prima facie basis, his entitlement to a judgment of divorce pursuant to DRL §170(6).

In opposition, the defendant contends that discovery is not yet completed and that the plaintiff's motion for summary judgment is premature. While counsel does not make a specific reference, it is presumed his opposition is based on CPLR Rule 3212(f). The defendant has not asserted that there are any facts essential to justify opposition which may exist. The fact that discovery has not been completed does not bar determination of the instant motion unless the defendant can establish that there are facts essential to justify opposition which may exist.

The defendant also notes that the parties' written agreement, prepared by her attorney, does not contain a provision that the plaintiff and the defendant agreed to live separate and apart. The defendant concedes that this was "an oversight." Defendant's counsel asserts that a triable issue exists as to whether the parties' agreement is a valid separation agreement upon which a conversion divorce may be granted. It has been held that "a clause explicitly stating that the parties shall live separate and apart pursuant to the agreement is not a prerequisite to a valid agreement of separation pursuant to Domestic Relations Law §170(6)." (Sint v. Sint, 225 AD2d 606, 607 [2d Dept. 1996].) The defendant does not deny that the parties physically separated following the execution of the agreement and have been living separate and apart. I find that the parties' agreement constitutes a valid separation agreement as contemplated by DRL §170(6).

The defendant also opposes summary judgment asserting that the parties have not resolved the issue of maintenance. The court notes that the plaintiff's complaint demands that "future" issues of maintenance be referred to Family Court. The defendant has not submitted a cross-claim for maintenance or even moved for such relief pendente lite. However, the defendant contends that the separation agreement specifically provides on page "8" that the parties agreed to separately negotiate the issue of maintenance which was not otherwise provided for in the agreement, implying that the plaintiff's failure to negotiate maintenance represents a failure to substantially comply. The parties' agreement actually provides at paragraph "8": "Based upon the husband's payment of the carrying charges on the marital home; the wife's right to the exclusive use and occupancy of the marital home and the husband's maintenance of health insurance for the benefit of the wife, no provision is made in this agreement for maintenance. This is, however, without prejudice to the right of either party to receive maintenance, whether the result of a negotiated disposition or an application to a court of competent jurisdiction for an award of maintenance based upon changes in their circumstances."

It is uncontroverted that the defendant has made no application to this court or any other court for an award of maintenance based upon changes in her circumstances as permitted in the agreement drafted by her attorney. The fact that the parties have been unable or unwilling to negotiate a resolution of this issue does not mean, as evidenced by the precise language of the agreement drafted by the defendant's counsel, that the plaintiff has not substantially complied [*4]with the agreement and it is not sufficient to deny summary judgment.

The defendant contends that the parties executed a modification of the separation agreement regarding transfer of the plaintiff's interest in the marital residence to the defendant and that the plaintiff has not substantially performed pursuant to the modified agreement.

The parties' separation agreement specifically provides: "No modification or waiver of any of the provisions of this agreement shall be effective unless in writing and executed with the same formality as this agreement."

The defendant has proffered what she purports to be a written modification in the form of a document subscribed and sworn to by each of the parties. That document, addressed to the Ulster Savings Bank, provides: "We are requesting a Deed Conveyance pursuant to a divorce agreement. (H.E.H.) wishes to be removed from the existing mortgage and deed. (S.H.) wishes to assume the existing mortgage and be listed as sole owner on the new deed. (S.H.) will incur the fees associated with this process."

Defendant contends that this document evidences a valid modification of the parties' separation agreement and, since the plaintiff has failed to comply with its terms, establishes that he has not substantially performed all the terms and conditions of the parties' separation agreement. The defendant also seeks to compel a conveyance of the marital residence by relying upon the same document.

DRL §236B(3) provides that a separation agreement must be in writing, must be subscribed by the parties, and must be acknowledged or proven in the manner required to entitle a deed to be recorded. It is uncontroverted that the document subscribed by the parties on November 16, 2005 does not contain an acknowledgment. The Real Property Law sets forth the essential elements for a proper acknowledgment for a deed to be recorded. Primary among those is the requirement that the person taking the acknowledgment must attach a certificate of acknowledgment. Real Property Law §306 sets forth the required contents of that certificate which must include: "All the matters required to be done, known, or proved on the taking of such acknowledgment or proof; together with the name and substance of the testimony of each witness examined before him."

The document proffered by the defendant and executed by the parties on November 16, 2005 does not contain the requisite acknowledgment. The Court of Appeals has unequivocally stated that "an unacknowledged agreement is invalid and unenforceable in a matrimonial action." (Matisoff v. Dobi, 90 NY2d 127, 136 [1997].)

The agreement relied upon by the defendant dated November 16, 2005 cannot be considered a valid modification of the parties' separation agreement. The defendant has failed to establish that there are any triable issues of fact regarding the plaintiff's substantial performance pursuant to the parties' separation agreement. Therefore, it is ordered that the plaintiff's motion is granted and he shall have summary judgment granting him a divorce pursuant to DRL §170(6) and for the relief demanded in the complaint. Submit judgment on five (5) days' notice.

I decline to determine whether the November 16, 2005 document may constitute a contract which is separately enforceable as a non-marital contract as no action has been instituted [*5]to enforce the agreement. Therefore, it is ordered that the defendant's motion to compel the conveyance of the plaintiff's interest in the marital residence is denied.

The defendant's motion to strike the note of issue is denied as academic.

The Court read and considered the following documents upon these applications:

PAGES NUMBERED

1.Notice of Motion.........................1

Affidavit-H.H.......................1-2

Affirmation-Lazar...................1-3

Exhibits............................A-E

2.Notice of Cross-Motion...................1-2

Affidavit-S.H.......................1-8

Affirmation-Friedman................1-3

Exhibits............................A-E

3.Affidavit in Opposition-H.H..............1-10

Affirmation-Lazar...................1-9

Exhibits............................E-J

4.Reply Affidavit-S.H......................1-5

Reply Affirmation-Friedman..........1-5

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

July 28, 2006

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

072506 decision&order