Agulnick v. Agulnick

• Citation: 136 N.Y.S.3d 462,191 A.D.3d 12
• Decision Date: 09 December 2020
• Docket Number: 2019–07339,Index No. 202374/18
• Parties: Marc AGULNICK, appellant, v. Adrienne AGULNICK, respondent.
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 12

136 N.Y.S.3d 462

Marc AGULNICK, appellant,

v.Adrienne AGULNICK, respondent.

2019–07339

Index No. 202374/18

Supreme Court, Appellate Division, Second Department, New York.

Argued - October 6, 2020

December 9, 2020

Law Offices of Kenneth J. Weinstein, P.C., Garden City, NY (Kenneth J. Weinstein of counsel), for appellant.

Sunshine & Feinstein LLP, Garden City, NY (Joel M. Sunshine of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.

OPINION & ORDER

DILLON, J.

Domestic Relations Law § 170 sets forth seven grounds for a divorce cognizable in New York. Some of the "traditional" grounds for divorce, including adultery, have been relegated to lesser importance in the wake of the state's enactment of the equitable distribution provisions of Domestic Relations Law § 236(B)(5) and the "No Fault" divorce provision of Domestic Relations Law § 170(7) in 2010. Our state's decisional authorities on adultery, including its elements and defenses, and the burdens for propounding or opposing the cause of action, have aged for more than a century. Yet, even with the enactment of No Fault divorce in our state, there are circumstances where allegations of adultery may assume great significance to matrimonial actions. This action is one such example, and allows us to examine, and sharpen for the matrimonial bar, the evidence that a party must present to establish prima facie entitlement to summary judgment dismissing a cause of action alleging adultery, and the nature of opposing evidence sufficient to raise a triable issue of fact.

I. Facts

The plaintiff, Marc Agulnick (hereinafter the husband), and the defendant, Adrienne Agulnick (hereinafter the wife), were married in 2004 and reside in Nassau County. The husband commenced an action for divorce on October 3, 2018, upon the filing of a summons with notice and a verified complaint, alleging an irretrievable breakdown of the marriage for a period six months prior to commencement of the action (see Domestic Relations Law § 170[7] ) as the sole ground for the divorce, and seeking ancillary relief. The wife served an answer with counterclaims dated November 21, 2018, and, thereafter, an amended answer with counterclaims dated January 7, 2019. As relevant here, the verified amended answer contained a counterclaim for divorce on the ground of adultery under Domestic Relations Law § 170(4). The counterclaim alleged that from approximately March of 2014 and thereafter the husband openly engaged in an adulterous relationship with R.L., who slept in the marital home, vacationed with the husband in Florida, resided with him in another marital home in Florida, and accompanied him at social settings. The counterclaim further alleged that the husband's activities included sexual intercourse and was without the wife's consent, connivance, privity, or procurement. The husband denied all allegations of adulterous behavior in a reply dated February 1, 2019.

The verified amended answer was served after the husband moved to dismiss the counterclaims alleged in the wife's initial verified answer for failing to state a cause of action (see CPLR 3211[a][7] ). The Supreme Court examined the motion against the allegations contained in the wife's verified amended answer and counterclaim. In an order dated January 23, 2019, the court found the adultery counterclaim to be pleaded with sufficient particularity under CPLR 3016(c), and therefore denied the husband's motion.

The wife's counterclaim alleging adultery has significance to the financial issues of the parties' divorce action because of the terms of the parties' post-nuptial agreement, dated September 26, 2006. In the agreement, the husband admitted "prior acts of infidelity," and agreed, if he engaged in certain acts of sexual contact with a third party thereafter, that the wife would receive 80% of his future gross lifetime earnings from all sources, minus FICA, and 80% of all marital assets. The husband also agreed to assume 100% of certain defined liabilities, and to pay the wife her marital share of the value of his medical license. Although the enforceability of this agreement is not at issue on this appeal, the viability or non-viability of the wife's adultery counterclaim against the husband has obvious financial ramifications for the outcome of the parties' existing divorce action.

Shortly after the Supreme Court denied the husband's motion to dismiss the adultery counterclaim under CPLR 3211(a)(7), the husband moved, inter alia, for summary judgment dismissing that counterclaim under CPLR 3212. In support, the husband proffered an affidavit in which he stated that he "never engaged in a sexual relationship of any kind or nature with" R.L., who he identified by full name in the papers as the family babysitter. The husband further averred that the presence of R.L. in the parties' homes was "at all times ... in a professional working capacity, approved and initiated by [the wife], wherein [R.L.] supervises our children." The motion was also supported by an affidavit of R.L., wherein she identified herself as the babysitter and caretaker of the parties' children, and stated that she "never engaged in a sexual relationship of any kind or nature with" the husband, and that "[a]ny and all times I have been in the [husband]'s presence have been in a professional working capacity wherein I supervises [sic] the parties' children."

In opposition, the wife asserted in an affidavit that the husband has "shown an inclination and desire to commit adultery" by virtue of events that had admittedly occurred over a decade earlier. She also stated that the husband had the opportunity to commit adultery, as R.L. had vacationed with him during the marriage, spent a night at the marital residence and at a vacation home while the husband was present, and accompanied the husband at social functions. The wife also argued that summary judgment was premature absent discovery on these issues.

In reply, the husband and R.L. each provided affidavits in further support of summary judgment dismissing the adultery counterclaim. Both averred that R.L.'s overnight stays at the marital homes and on vacation were always in a babysitter capacity with the children present, that R.L. slept in a room at the marital home assigned to her by the wife, and that R.L. always attended any social events in a babysitter capacity with the wife and children present.

In the order appealed from, the Supreme Court denied that branch of the husband's motion which was for summary judgment dismissing the adultery counterclaim. The court determined that the husband's various submissions denying a sexual relationship with R.L. were "conclusory and self-serving," and, therefore, failed to meet his prima facie burden on summary judgment.

For reasons set forth below, we reverse.

II. Legal Analysis

As often stated by appellate courts, a party seeking summary judgment bears the initial burden of demonstrating its prima facie entitlement to the requested relief (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298 ). A party moving for summary judgment cannot attempt "to remedy a fundamental deficiency in the moving papers by submitting evidentiary material with the reply" ( Ford v. Weishaus, 86 A.D.3d 421, 422, 926 N.Y.S.2d 103 [internal quotation marks omitted]; see Arriola v. City of New York, 128 A.D.3d 747, 9 N.Y.S.3d 344 ; Henry v. Peguero, 72 A.D.3d 600, 900 N.Y.S.2d 49 ). Only if the movant meets the prima facie burden does the burden then shift to the party opposing summary judgment to tender evidence, in a form admissible at trial, sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d at 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298 ). Material proffered in opposition to summary judgment is insufficient if it constitutes mere surmise, suspicion, speculation, or conjecture (see Nerey v. Greenpoint Mtge. Funding, Inc., 144 A.D.3d 646, 648, 40 N.Y.S.3d 510 ; Morgan v. New York Tel., 220 A.D.2d 728, 729, 633 N.Y.S.2d 319 ). These rules apply equally to summary judgment motions directed to counterclaims (e.g. McLaughlin v. Orthopedic & Sports Medicine, P.C., 59 A.D.3d 687, 688, 874 N.Y.S.2d 209 ). The prima facie showing that is required of the moving party is governed by the allegations made in the pleading that is being attacked (see Breest v. Long Is. R.R., 140 A.D.3d 819, 33 N.Y.S.3d 420 ; Wald v. City of New York, 115 A.D.3d 939, 940, 982 N.Y.S.2d 534 ). Ultimately, the role for the court in addressing a motion for summary judgment is issue finding rather than issue resolution (see Kriz v. Schum, 75 N.Y.2d 25, 33, 550 N.Y.S.2d 584, 549 N.E.2d 1155 ; Shabat v. State of New York, 177 A.D.3d 1009, 1010, 113 N.Y.S.3d 174 ; Miele v. American Tobacco Co., 2 A.D.3d 799, 803–804, 770 N.Y.S.2d 386 ).

Allegations of adultery present unique issues of proof. The conduct is oftentimes clandestine and out of public view (see Moller v. Moller, 115 N.Y. 466, 468, 22 N.E. 169 ), and proving it in such instances must depend upon circumstantial evidence. Recognizing this, our decisional authority has held since at least 1877 that adultery may be circumstantially proven by means of a three-part test consisting of (1) a lascivious desire, and (2) the opportunity to gratify the desire, and (3) acting upon the desire (see Yates v. Yates, 211 N.Y. 163, 168, 105 N.E. 195 ; Pollock v. Pollock, 71 N.Y. 137, 153 ; see also Davis v. Davis, 263 A.D. 929, 32 N.Y.S.2d 603 ; Kay v. Kay, 235 A.D. 25, 32, 256 N.Y.S. 147 ; Graham v....