Carreiro v Colbert

[*1] Carreiro v Colbert 2014 NY Slip Op 51669(U) Decided on November 21, 2014 Supreme Court, Tompkins County Rumsey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2014
Supreme Court, Tompkins County

Joel Carreiro, Plaintiff,

against

Colleen Colbert, Defendant.



2014-0729



MILLER MAYER, LLP

By:Anthony N. Elia, III, Esq.

Attorneys for Plaintiff

202 East State Street, 7th Floor

P.O. Box 6435

Ithaca, New York 14850

EDWARD E. KOPKO, LAWYER, P.C.

By:Edward E. Kopko, Esq.

Attorneys for Defendant

308 N. Tioga Street, 2nd Floor

Ithaca, New York 14850
Phillip R. Rumsey, J.

The parties are former spouses who were divorced by a judgment granted on October 17, 2011 (Supreme Court, Rockland County, Index No. 1213/09). All issues of child custody and visitation were resolved by a written stipulation dated March 1, 2010 (the Stipulation) that was incorporated without merger in the judgment of divorce. The Stipulation provides for joint legal custody of the parties' minor children and primary placement with the mother, who is the defendant in the divorce action and also in this action. The Stipulation permits defendant to relocate her residence, with the children, within 200 miles of the residence she occupied when the stipulation was executed, which was located in Nyack, New York. The Stipulation further provides that if defendant relocates a distance of more than approximately 200 miles from her Nyack residence: (1) one-half of plaintiff's visitations will occur in Rockland County, with defendant transporting the children at her expense; and (2) one-half of plaintiff's visitations will occur in the area of defendant's relocated residence, and defendant shall pay plaintiff $200 per visit for travel fees or, alternatively, may exercise the option to transport the children to plaintiff's residence in Rockland County (see Stipulation, Article III [pp. 7-8]). Defendant relocated to Ithaca, New York in August 2012.

Plaintiff commenced this action and moved for summary judgment, pursuant to CPLR 3213, seeking to recover sums he alleges are due him for traveling to Ithaca for visitation with the parties' daughter beginning in October 2012 on the basis that Ithaca is more than 200 miles from Nyack, New York.[FN1] In support of his motion, he alleges that Ithaca, New York is "more than 200 miles from Nyack, New York" (Affidavit of Joel Carreiro, sworn to August 5, 2014, ¶ 21), but submits no other proof regarding the distance between defendant's prior residence in Nyack, New York and her relocated residence in Ithaca, New York.

Defendant opposes plaintiff's motion and asserts a counterclaim for prima facie tort. In opposition to plaintiff's motion, defendant avers that the straight-line, or radial, distance between the street addresses of the two residences is 162.64 miles (see Affirmation of Edward E. Kopko dated September 18, 2014, ¶ 10). Plaintiff does not contradict defendant's proof regarding the radial distance between the two residences, but argues that the Stipulation requires that the 200 mile distance be measured by the driving distance. Although neither party provided proof of the driving distance between the two residences, the court takes judicial notice that it exceeds 200 miles.[FN2] Inasmuch as there is no dispute about the radial or driving distances between defendant's [*2]residences in Nyack and Ithaca, resolution of plaintiff's motion turns on the interpretation to be given to the measurement of distance specified in the Stipulation.

"A settlement agreement that is incorporated into, but not merged with, a judgment of divorce remains an independent contract, binding on the parties and subject to the rules of contract interpretation. Where the language of the agreement is clear, the court must determine the intent of the parties by examining the agreement itself. Whether language is ambiguous is a matter of law to be determined by the court, and in rendering this determination a court may not add or excise terms, nor distort the meaning of those used."

Matter of Drake v Drake, 114 AD3d 1119, 1120-1121 (2014) (quotation and citations omitted); see also Vega v Papaleo, 119 AD3d 1139, 1139 (2014) ("analysis of disputed terms is based upon their plain meaning, as well as consideration of whatever may be reasonably implied from that literal language"); Momberger v Momberger, 97 AD3d 945 (2012).

The Stipulation obligates defendant to pay travel fees to plaintiff if visitation occurs "at a relocated residence of the Mother approximately 200 miles from the Mother's current residence in Nyack, New York" (Stipulation, Article III [p. 8]). Precedent of the Appellate Division, which this court is bound to follow, shows that the Stipulation is not ambiguous, and requires that it be construed as obligating defendant to pay travel fees to plaintiff only if she relocates an approximate distance of more than 200 radial miles from her former residence in Nyack.

In Potier v Potier, 198 AD2d 180 (1993), the parties entered into a Separation Agreement permitting the plaintiff wife to relocate within 60 miles of the Empire State Building. Like the Stipulation at issue in this case, the Separation Agreement in Potier provided only the relevant distance without specifying whether it was to be measured on a straight-line basis or by the actual driving distance (see Record on Appeal, Potier, Vol. I, p. 66 [plaintiff "shall reside within sixty (60) miles of the Empire State Building"]). And, like the facts in this case, the wife relocated to a residence within the distance specified by the parties' agreement, if measured on a radial basis, but beyond the specified distance, if measured by the driving distance. On those facts, the Appellate Division, Second Department, unanimously affirmed the trial court's determination that the plaintiff wife's relocation to a new residence located 77 road miles from the Empire State Building did not violate the terms of separation agreement because it was located less than 60 radial miles therefrom. As a matter of law, having moved a distance of less than 163 radial miles, defendant did not relocate "approximately 200 miles" from her former residence, and she [*3]is not obligated under the Stipulation to pay travel fees to plaintiff.

Although defendant did not cross-move for summary judgment, the record shows that she is entitled to summary judgment dismissing plaintiff's claim (see CPLR 3213 [authorizing the court to fashion appropriate relief upon denial of plaintiff's motion]; CPLR 3212[b] [authorizing the court to grant summary judgment to a party other than the moving party upon a proper showing without the necessity of a cross-motion]; see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3213:11, pp. 420-421).

Based on the foregoing: (1) plaintiff's motion is denied; (2) defendant is granted summary judgment dismissing, with prejudice, plaintiff's claim against her for travel fees associated with his exercise of visitation in Ithaca, New York; (3) defendant's counterclaim for prima facie tort — as set forth in the Affidavit of Colleen Colbert, sworn to September 18, 2014, ¶¶ 107-127, and the wherefore clause on p. 16 — is severed (see Newcourt Small Bus. Lending Corp. v Grillers Casual Dining Group, 284 AD2d 681 [2001]); and (4) plaintiff may file and serve a reply to defendant's counterclaim on or before December 22, 2014.

This decision constitutes the order of the court. The transmittal of copies of this decision and order by the court shall not constitute notice of entry.

Dated: November 21, 2014 Cortland, New York

______________________________

HON. PHILLIP R. RUMSEY

Supreme Court Justice

The following documents were filed with the Clerk of the County of Tompkins:

Notice of motion dated August 7, 2014.

Affidavit of Joel Carreiro, sworn to August 5, 2014, with Exhibits A — F.

Affirmation of Edward E. Kopko dated September 18, 2014, with Exhibit One.

Affidavit of Colleen Colbert, sworn to September 18, 2014.

Undated reply affirmation of Anthony N. Elia, filed September 25, 2014, with Exhibits F — H.

Reply affidavit of Joel Carreiro, sworn to September 24, 2014, with Exhibits A — E.

Excerpt From Record on Appeal, Potier v Potier, 198 AD2d 180 (1993), Vol. I, p. 66 (copy of page 28 of the Separation Agreement), filed by the court.

Original Decision and Order dated November 21, 2014.

Footnotes

Footnote 1: CPLR 3213 may be used to seek summary judgment in any action based upon an instrument for payment of money only or upon any judgment. Inasmuch as this action requires interpretation of a term contained in the parties' agreement, as incorporated into a judgment, it is not clear that plaintiff's claim qualifies for CPLR 3213 treatment (see e.g. Reilly v Insurance Co. of N. Am., 32 AD2d 918 [1969]). However, defendant did not object to plaintiff's use of this procedure, thereby permitting the court to decide the motion (id.; see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3213:3, p. 412, citing Reilly).

Footnote 2: The distance and driving time were calculated using Google Maps (www.google.com/maps, last accessed November 17, 2014) as 213 miles and 3 hours and 34 minutes. "Courts commonly use internet mapping tools to take judicial notice of distance and geography" (Rindfleisch v Gentiva Health Sys., Inc., 752 F Supp 2d 246, 259 n 13 [EDNY 2010]; accord Brisco v Ercole, 565 F3d 80, 83 n 2 [2d Cir 2009], cert denied 558 US 1063 [2009]; Ceglia v Zuckerberg, 2013 WL 1208558 *22 n 25 [WDNY 2013]; Tudor Time Learning Ctrs, LLC v KOG Indus., Inc., 2012 WL 5497943 *5 n 4 [EDNY 2012]; Maynard v Harrah's Entertainment, Inc., 2010 WL 1930263 *5 n 6 [EDNY 2010]; Bisignano v Korff, 2001 WL 1772172 *4 n 1 [SDNY 2001]; see also Connor v City of New York, 29 Misc 3d 1208[A], 2010 NY Slip Op 51757[U]; Dynamic Med. Imaging, P.C. v State Farm Mut. Auto Ins. Co., 29 Misc 3d 278, 279 — 280 n 1[2010]; U.S. v Sessa, 2011 WL 256330 *25 n 12 [EDNY 2011], affd 711 F3d 316 [2013], cert denied ___ US ___, 134 S Ct 353 [2013], reh denied ___ US ___, 134 S Ct 734 [2013]).