Schwimmer v Schwimmer

[*1] Schwimmer v Schwimmer 2009 NY Slip Op 52716(U) [26 Misc 3d 1213(A)] Decided on November 24, 2009 Supreme Court, New York County Kaplan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 24, 2009
Supreme Court, New York County

Craig Schwimmer, Plaintiff,

against

Susan Schwimmer, Defendant.



307522/2008



Attorney for plaintiff:

Michele A. Silva, Esq.

Phillips Nizer LLP

666 Fifth Avenue

New York, NY 10103-0084

(212) 841-0713

fax: (212) 262-5152

Attorney for defendant:

Larry M. Carlin, Esq.

437 Madison Avenue

New York, NY 10022

(212) 622-7180

fax: (212) 754-2508

Deborah A. Kaplan, J.

By letter application as permitted by the Court for addressing the limited issue herein, the plaintiff-husband (hereinafter "husband") seeks to have the parties' rent stabilized apartmentappraised for purposes of equitable distribution, support claims and other financial issues. He claims that, notwithstanding any case law to the contrary, the parties contractually agreed that the value of the marital residence was a factor to be considered for these purposes. He refers to the parties' June 10, 2009 stipulation in which the parties agree that plaintiff's waiver of occupancy of the parties' marital residence is "...without prejudice to any and all claims for equitable distribution and/or any other financial claims by the Husband with respect to the Marital Residence, including any claim with respect to the value, if any, of the Husband's waiver of claims to reside in the Marital Residence or in the event the Marital Residence is converted to a cooperative ownership or any other form of ownership. . ."[*2]

In further support of his application, the plaintiff relies on Gape v. Gape, 125 AD2d 637 (2nd Dept. 1986) wherein the court states that, "there is to be broad disclosure in actions in which equitable distribution is sought, and each party is entitled to a searching exploration of the other spouse's assets, both to aid in valuation and uncover potential hidden assets."

The plaintiff-wife (hereinafter "wife") opposes the motion. With respect to the husband's claim that the residence should be appraised for purposes of equitable distribution, she relies on Fedoff v. Fedoff, 41 AD3d 114 (1st Dept. 2007) which holds that in circumstances where "there is no expectation that a rental apartment well be converted into a condominium or cooperative, it is not distributable property (citation omitted), and therefore need not be appraised." The wife argues further that the apartment also does not have any value for purposes of support. Rather, she asserts, that while the Court may consider each parties' monthly rental expenses when determining the amount of child support to award, this would certainly not require a valuation of the marital residence.

There is not, at this time, any evidence that a conversion of the parties' apartment into either

a cooperative or condominium is imminent. Accordingly, the husband's application for an appraisal on this ground is denied with leave to renew should the circumstances change during the pendency of this divorce action.The other bases proffered by the husband in support of his application do not persuade this Court that an appraisal is warranted.

ENTER:



Dated: November 24, 2009

New York, New York

Justice of the Supreme Court