Andron v. Libby

• Decision Date: 11 September 2014
• Docket Number: 651324/10, 12629, 12628
• Citation: 2014 N.Y. Slip Op. 06155,120 A.D.3d 1056,993 N.Y.S.2d 272
• Court: New York Supreme Court — Appellate Division
• Parties: Kimberly ANDRON, Plaintiff–Appellant, v. Howard LIBBY, Defendant–Respondent.

120 A.D.3d 1056
993 N.Y.S.2d 272
2014 N.Y. Slip Op. 06155

Kimberly ANDRON, Plaintiff–Appellant
v.
Howard LIBBY, Defendant–Respondent.

651324/10, 12629, 12628

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

Sept. 11, 2014.

993 N.Y.S.2d 273

Mintz & Gold LLP, New York (Scott Klein of counsel), for appellant.

Hirschel Law Firm, P.C., Garden City (Daniel Hirschel of counsel), for respondent.

MAZZARELLI, J.P., FRIEDMAN, SAXE, MANZANET–DANIELS, FEINMAN, JJ.

Opinion

120 A.D.3d 1056

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 15, 2012, which denied plaintiff's motion for summary judgment and for dismissal of the counterclaim, unanimously reversed, on the law, with costs, the motion granted, and the matter remanded for a hearing to determine

120 A.D.3d 1057

reasonable attorney's fees. Appeal from order, same court and Justice, entered April 26, 2013, which, upon reargument, adhered to the original determination, unanimously dismissed, without costs, as academic.

Plaintiff brought this action against defendant, her former father-in-law, to enforce his guaranty of a settlement agreement reached in a matrimonial proceeding. Defendant counterclaimed, seeking damages in the form of costs associated with this litigation. The settlement agreement provided in relevant part that plaintiff, the former wife, who remained an obligor on a mortgage and a line of credit agreement along with her nonparty former husband (hereinafter, the husband), had the right to notify the husband or defendant when there was an “uncured default” in the monthly payments and demand that the default be cured. It also provided that defendant's failure to give notice of the cure within five business days of plaintiff's initial demand, would trigger her right to seek immediate enforcement of the settlement agreement, including, as pertinent here, defendant's payment of her reasonable attorney's fees incurred in the enforcement of the guaranty.

Plaintiff's primary claim is that as of July 2010, the husband's repeated late payments on the mortgage and the line of credit had damaged her credit and resulted in receipt of a bank notice indicating that the former marital residence was at risk of foreclosure. Defendant failed to provide proof of cure of the defaulted payments by July 19, 2010, five business days after her demand. On July 22, 2010, defendant was notified by email that because he had not given timely notice to plaintiff that the defaults had been cured, plaintiff was asserting her right to have the entire

993 N.Y.S.2d 274

equitable distribution payment come due immediately. When no payments were made, plaintiff commenced this litigation. Since commencement of this action, defendant has paid the accelerated debt and default interest, and the first cause of action is no longer at issue.

The crux of the defense is that...