Gardella v Remizov

[*1] Gardella v Remizov 2013 NY Slip Op 51347(U) Decided on August 15, 2013 Supreme Court, Nassau County Maron, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 15, 2013
Supreme Court, Nassau County

Slavina Gardella, Plaintiff

against

Emil Remizov, Defendant.



203399-11



Attorney(s) for the Plaintiff

Jason M. Barbara & Associates, P.C.

1111 Marcus Avenue, Suite 107

Lake Success, NY 11042

Attorney(s) for the Defendant

THE LAW OFFICES OF KARL BRODZANSKY & ASSOCIATES

1 Old Country Road, Suite 427

Carle Place, NY 11514

Edward A. Maron, J.

Defendant ("Husband") moves by Order to Show Cause dated March 22, 2013 seeking an Order a) granting Husband re-argument and/or renewal of the Order of the Court dated January 31, 2013 and entered in the Office of the Clerk of the County of Nassau, on February 4, 2013, and upon re-argument and/or renewal, denying Plaintiff's ("Wife") motion for summary judgment, granting Husband summary judgment as to Husband's counterclaims to rescind and vacate the Separation Agreement based on unconscionability; compelling Wife to comply and respond to previously court-ordered discovery demands of Husband and declaring the Nuptial Agreement dated October 30, 2002 invalid, null and void; b) vacating the Order of this Court of March 14, 2013, since Husband has a claim for maintenance, attorney's fees and is entitled to Discovery as to said limited issues; c) granting Husband Discovery as to the issue of maintenance and then a hearing/trial as to Husband's claims for maintenance and counsel fees.

Wife opposes Husband's motion and cross-moves by Notice of Cross Motion dated April 18, 2013 seeking an Order a) awarding Wife counsel fees in the amount of $10,000.00 for defending the within application for leave to renew and reargue; and b) denying Husband's Notice of Motion seeking leave to renew and reargue.

From the outset the Court notes that Husband has not submitted an Affidavit along with the [*2]Notice of Motion, but rather Husband's counsel has submitted an Affirmation in support thereof [FN1]. While the Husband submitted an Affidavit with the Reply papers and in opposition to the Wife's cross-motion for counsel fees, such deficiency may not be cured in reply. Husband's motion, however, does not prevail on other grounds as more specifically set forth herein below.

In support of the Husband's motion, Husband's counsel sets forth the following arguments in sum and substance: i) that the Court overlooked D.R.L. §236B(3) in rendering its January 31, 2013 decision wherein Wife was granted summary judgment on the First, Second and Third Counterclaims [FN2] pled by Husband in his Verified Answer With Counterclaims, to wit: "Fraud, Coersion [sic] and Duress," "To Rescind and Vacate the Separation Agreement Based Upon Unconscionability," and "To Set Aside and Vacate the Prenuptial Agreement and Amended Prenuptial Agreement," ii) that the Court misapprehended and/or overlooked controlling law with respect to the 2002 prenuptial agreement dated October 20, 2002, to wit: the Court overlooked that the controlling statute is D.R.L. §250 with respect to the applicable statute of limitations for challenging a prenuptial agreement; iii) that the Court overlooked that a prenuptial agreement that is not duly acknowledged is void ab initio; iv) that the Court misapprehended and/or overlooked the alleged fact that notwithstanding the express language of the 2002 prenuptial agreement stating that Husband waives his claim to Wife's private practice, he did not in fact waive such claim; v) that the Court overlooked that the 2002 prenuptial agreement did not address the issue of appreciation of the properties and assets; vi) that the Court overlooked or misapprehended certain alleged facts surrounding the 2002 prenuptial agreement, to wit: Husband's claims that he was not represented by counsel during the negotiation and execution of the 2002 prenuptial agreement, which would lead to legal conclusion that there was overreaching; vii) that the Court misapprehended the alleged fact that Husband is not an educated man, does not comprehend English, and is not a businessman; viii) that the Court overlooked that Wife never provided or accounted to the Husband for any of the parties' assets or income prior to the signing of the agreement; ix) that the Court overlooked that the Separation Agreement dated December 11,2010 never provided or accounted for Wife's one million dollars in stock and securities in her 2010 tax return; and x) that the Court overlooked and misapprehended the facts alleged by the parties as to Husband's claims of unconscionability.

With respect to Husband's counsel's argument that the Court overlooked D.R.L. §236B(3) and that Husband's claims for spousal maintenance was never dismissed is without merit. Although Husband set forth such prayer for relief in the ad damnum clause of the Verified Answer with Counterclaims, the Court summarily denied his counterclaim to set aside the relevant agreements, and therefore the spousal maintenance provisions of such agreements are the law of the case. The Court is not in a position to re-write the parties' agreements and grant Husband relief beyond the [*3]terms of such agreements. Article 5 of the parties' Separation Agreement dated December 11, 2010 clearly sets forth the parties' mutual waivers of any and all right to maintenance from the other party. This Court does not have the authority to modify or re-write stipulations entered into freely, knowingly and voluntarily by the parties, nor does the Court have the authority to insert terms, provisions or conditions.

With respect to Husband's counsel's arguments that the Court applied the incorrect statue of limitations, the Court agrees that the statute of limitations "for commencing an action or proceeding or for claiming a defense that arises from an agreement made pursuant to [D.R.L. §236B] entered into (a) prior to a marriage or (b) during the marriage, but prior to the service of process in a matrimonial action or proceeding, shall be three years.... [and] The statute of limitations shall be tolled until (a) process has been served in such matrimonial action or proceeding..." Notwithstanding the timelines of Husband's counterclaims, the Court's decision was not based solely thereon.

With respect to Husband's counsel's argument that the agreements at issue were not properly notarized, the Court does not agree. In rendering its original decision, the Court carefully reviewed the parties' submissions, and most specifically the prenuptial agreements. Such review was of not only the terms of the agreement, but also the validity of the execution thereof.

With respect to Husband's counsel's claims that the appreciation of the properties and assets was not addressed in the 2002 prenuptial agreement, and that the properties were all purchased during the marriage and improved significantly (and appreciated) during the marriage as a direct result of Husband's efforts, the express language of the 2002 prenuptial agreement states that:

WHEREAS the parties are aware that under the Domestic Relations Law of the State of New York as amended, commonly referred to as the Equitable Distribution Law, or under similar law in other states, upon any divorce or separation of the parties hereto that each party is entitled to an equitable share of any marital property in possession at the time of said divorce and/or separation.

Furthermore, with respect to Husband's counsel's claims the Court misapprehended the fact that the Wife obtained a one-third interest in a neurological practice in 2005. The 2002 prenuptial agreement was ratified in the parties' Separation Agreement dated December 11, 2010, which specifically states that "The parties acknowledge and agree that the Wife is a partner in NY Neurologic Associates LLP. The partnership consists of three individuals Pursuant to the Post-Nuptial Agreement, dated October 20, 2002, the Husband shall waive any and all interest, rights, title and or claims to the Wife's interest in the partnership [NY Neurologic Associates, LLP] now and forever."

With respect to other assets or property, including Wife's stocks, the Florida properties, and the appreciation of certain property or assets against which Husband now attempts to make a claim, as far the Court is concerned, the agreements constitute complete agreements, and this Court does not have the authority to modify or re-write stipulations entered into freely, knowingly and voluntarily by the parties, nor does the Court have the authority to insert terms, provisions or conditions.

With respect to Husband's counsel's arguments the Husband was not represented by counsel [*4]for the 2002 prenuptial agreement, the agreement contains a decretal paragraphs expressly stating [FN3]:

WHEREAS the parties acknowledge that they each have consulted with an attorney of their own free choice and have secured independent counsel and advice pertaining to the negotiation, preparation and execution of this Agreement, to wit: [Wife] has retained and consulted with Bruce D. Merker, [address omitted] and [Husband] has retained and consulted with Jeffrey Brown "

Husband failed to rebut the clear language of the agreement by any competent means, which may have included an Affirmation from the attorney who purportedly represented him during the negotiation and execution of the agreement, which would have stated that said attorney did not in fact represent the Husband.

With respect to Husband's counsel's arguments that Husband is not an educated man, that he does not comprehend English, and that he is not a businessman, the Court is satisfied that said arguments were carefully considered and addressed in the rendering of the underlying decision. The probative value of Mr. Orecharov's Affidavit was considered in the Court's decision. Article 7 of the Separation Agreement clearly states that "the parties acknowledge and agree that Husband is the sole proprietor of a wine importing business [and] that this business is the sole and separate property of the Husband "

With respect to Husband's counsel's argument that the Court overlooked that Wife never provided or accounted to the Husband for any of the parties' assets or income prior to the signing of the agreement, the Court is satisfied that the issue of the parties' mutual understanding as to their rights to compel discovery and their waiver thereto was properly addressed in the underlying decision. The Court makes specific reference to Article 18 of the Separation Agreement.

With respect to Husband's counsel's arguments that the Court overlooked and misapprehended the facts alleged by the parties as to Husband's claims of unconscionability, the Court is satisfied that the allegations and claims set forth by each party with respect to the issue were properly weighed and considered in the rendering of the underlying decision.

In support of the motion to renew his application for maintenance, Husband's counsel alleges in his moving papers that Husband's health has significantly changed for the worse.

Decision and Order

Wife's counsel's argues that Husband's application is fatally defective based upon his failure to annex the original moving papers, however, the Court does not agree. The statute does not require such submission upon making the application, and furthermore, the case cited by Wife's counsel is a Third Department case which is not binding upon this Court.

It is well settled that "[m]otions for reargument are addressed to the sound discretion of the trial court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or mistakenly arrived at its earlier decision" (Viola v. City of New York, 13 AD3d 439, 786 N.Y.S.2d 556 [2nd Dept. 2004]; Carrillo v. PM Realty [*5]Group,. 16 AD3d 611, 793 N.Y.S.2d 69 [2nd Dept. 2005]; McNeil v. Dixon, 9 AD3d 481, 780 N.Y.S.2d 635 [2nd Dept. 2004]). A motion to reargue is not to afford an unsuccessful party with additional opportunities to reargue issues previously decided, or to set forth arguments which differ in substance from those originally articulated ( McGill v. Goldman, 261 AD2d 593, 691 N.Y.S.2d 75 [2nd Dept. 1999]; Woody's Lumber Co., Inc. v. Jayram Realty Corp., 30 AD3d 590, 817 N.Y.S.2d 391 [2nd Dept. 2006]; Gellert & Rodner v. Gem Cmty Mgt., 20 AD3d 388, 797 N.Y.S.2d 316 [2nd Dept 2005]). Based upon a reading of the papers, and the proofs submitted therewith, the Court GRANTS that portion of branch "a" of Husband's motion seeking re-argument of the Order of this Court dated January 31, 2013, and upon such re-argument, the Court adheres to its original decision.

Section 2221(e) of the C.P.L.R. states, in relevant part, that a motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based on new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion.

An application for renewal "must be supported by new or additional facts which, although in existence at the time of the prior motion, were not known to the party seeking renewal, and, consequently, not made known to the court" (Brooklyn Welding Corp. v. Chin, 236 AD2d 392, 653 N.Y.S.2d 631 [2nd Dept. 1997]). Renewal is not a "second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Rubenstein v. Goldman, 225 AD2d 328, 638 N.Y.S.2d 469 [1st Dept. 1996], see also Delvecchio v. Bayside Chrysler Plymouth Jeep Eagle, 271 AD2d 636, 706 N.Y.S.2d 724 [2nd Dept. 2000]; Guerrero v. Dublin Up Corp. of New York, 260 AD2d 435, 687 N.Y.S.2d 721 [2nd Dept. 1999]; Kirkpatrick v. State Farm Fire & Casualty Co., 255 AD2d 363, 679 N.Y.S.2d 688 [2nd Dept. 1998]).

Based upon a reading of the papers, and the proofs submitted therewith, the Court GRANTS that portion of branch "a" of Husband's motion seeking renewal of the Order of this Court dated January 31, 2013, and upon such renewal, the Court adheres to its original decision.

In light of the foregoing, and for the reasons set forth herein, branches "b" and "c" of Husband's motion are DENIED.

Article 32 of the Separation provides:

If either party by any action, proceeding, defense, counterclaim, motion, or otherwise, seeks to vacate or set aside this Agreement or declare any of its provisions, terms or conditions as invalid, void, or against public policy, by any reason including but not limited to, fraud, duress, coercion, incompetency, overreaching, unfairness, unconscionability, said party shall reimburse the other party and be liable for all such, [sic] party's reasonable attorney's fees and expenses, provided and to the extent that such action, proceeding, defense, counterclaim motion or otherwise results in a decision, judgment, decree or order withdrawing, dismissing or rejecting said claims. If such party withdraws such providing, defense, counterclaim or motion, then he/she shall be liable for the other's reasonable attorney's fees and expenses incurred up to the point in time of such withdrawal.

In consideration of the Court's determination as to Husband's counterclaims as set forth in the Verified Answer with Counterclaims, Wife's motion for counsel fees is GRANTED, and Wife's counsel shall submit to this Court a final bill and Affirmation as to legal services rendered on behalf of Wife in defense of the instant applications (Motion Sequence 006-007). Counsel shall submit said bill to this Court and provide a copy to Husband's counsel by August 30, 2013. Upon [*6]submission of counsel's bill and affirmation for services, the Court will issue an order directing Husband to pay Wife's counsel the sum determined by the Court.

All matters not decided or requests for relief not granted herein are hereby DENIED.

This constitutes the decision and order of this Court.

Dated:August 15, 2013

Mineola, New York

ENTER:

_______________________

Edward A. Maron, J.S.C. Footnotes

Footnote 1:

"the Court's function in deciding the motion [for summary judgment] is to ascertain the existence of material issues of fact based upon the proofs set forth by the parties through affidavits based upon personal knowledge" (see Behar v. Ordover, 92 AD2d 557, 459 N.Y.S.2d 304 [2nd Dept. 1983]. In this instance Husband's counsel does not have personal knowledge of the old or newly discovered "facts" he alleges in his Affirmation in support of the motion.

Footnote 2:The Court notes that there were only three counterclaims set forth in Husband's Verified Answer with Counterclaims.

Footnote 3:

The 2002 prenuptial agreement, and the June 14, 2006 Amendment thereto, were both ratified by the parties pursuant to Article 4 of the Separation Agreement, dated December 11, 2010. Wife was represented by counsel, and Husband waived his right to have legal representation, as more specifically set forth in Article 26 of the Separation Agreement. That page, as well as all of the pages of the Separation Agreement, were initialed by both parties.