Banker v. Banker
| Decision Date | 26 November 2008 |
| Docket Number | 504879 |
| Citation | 870 N.Y.S.2d 481,56 A.D.3d 1105,2008 NY Slip Op 09331 |
| Parties | MICHELE R. BANKER, Respondent, v. ARNOLD L. BANKER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
The parties to this action were divorced by a judgment entered in 2005. An oral stipulation of settlement, which was incorporated but not merged into the divorce judgment, provided that the parties would subdivide a parcel of property located in the Town of Colchester, Delaware County. In response to a motion by plaintiff to enforce the stipulation, Supreme Court—in February 2006—ordered defendant to, among other things, obtain subdivision approval from the Town of Colchester Planning Board. The Planning Board denied defendant's subsequent subdivision application upon discovering that the property was encumbered by a restrictive covenant against further subdivision1. In light of this obstacle, in March 2006, defendant moved to reargue and/or renew Supreme Court's February 2006 order and requested, among other things, a hearing to determine equitable distribution.
Supreme Court did not rule on defendant's motion, but reserved decision on all pending matters pertaining to the parties until an appraisal of the property was completed. Because the parties could not agree on an appraiser, the court appointed one and challenged the parties, once the appraisal was complete, to settle the matter in a private auction or buyout. The appraiser completed two appraisals in June 2006, one valuing the entire 9.84-acre property and the other the 1.63-acre portion improved by a house. By letter dated October 4, 2006, defendant requested the opportunity to offer further proof of value. Defendant made a similar request by letter to the court dated January 19, 2007 and explained that the parties had not been able to settle the matter or agree on a private auction. Plaintiff responded with a motion seeking that the parties' interests in the property be declared in conformance with the terms set forth in the stipulation and the values established in the appraisal, as well as an order allowing her to buy out defendant's share of the property. Defendant opposed the motion, arguing that the appraisal should not be adopted without an opportunity by the parties to cross-examine the appraiser and submit other evidence of valuation. Supreme Court ordered a hearing to permit the parties to cross-examine the appraiser, but made it clear that no other testimony or evidence of valuation would be permitted.
Following the hearing—at which Supreme Court again denied defendant's request to submit further evidence—the court determined the interests of the parties in the property to be 83% for plaintiff and 17% for defendant. After giving the parties one last opportunity to settle the matter, the court, in August 2007, fixed the parties' interests as indicated above, appointed a receiver, and ordered the public sale of the property. Defendant appeals.
Initially, we find no merit in the procedural objections made by either party on appeal. Contrary to plaintiff's arguments, the issues that defendant raises on appeal are properly reviewable as they were issues decided by nonfinal letter orders which necessarily affected the August 2007 final order appealed from (see CPLR 5501 [a] [1]; Sparkling Waters Lakefront Assn., Inc. v Shaw, 42 AD3d 801, 802 n 1 [2007]). Likewise, we reject defendant's challenge to Supreme Court's failure to explicitly rule on his March 2006 motion to reargue and/or renew the court's February 2006 order directing him to pursue subdivision of the property. In his motion, defendant sought to have the court modify its order in light of the discovered deed restrictions on subdivision and for the matter to proceed for a determination of equitable distribution. Although Supreme Court did not directly address the motion, it implicitly vacated its February 2006 order when it ordered the appraisal, held the hearing and ultimately appointed a receiver and directed a sale. Accordingly, defendant's objections to Supreme Court's alleged inaction on his March 2006 motion are moot (see Matter of Castell v City of Saratoga Springs, 3 AD3d 774, 776 [2004]).
Further, we reject defendant's argument that Supreme Court exceeded its authority by reforming the parties' stipulation of settlement. Where,...
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