Cree v. Cree
| Decision Date | 03 November 1986 |
| Citation | 124 A.D.2d 538,507 N.Y.S.2d 683 |
| Parties | Leighton CREE, Appellant, v. Gwen CREE, Respondent. |
| Court | New York Supreme Court — Appellate Division |
John J. Fox, Pearl River, for appellant.
Ferraro Rogers Dranoff Greenbaum Cody Goldstein & Miller, P.C., Pearl River (Mitchell Y. Cohen, on the brief), for respondent.
Before THOMPSON, J.P., and WEINSTEIN, RUBIN and SPATT, JJ.
MEMORANDUM BY THE COURT.
In an action to compel specific performance of a provision of a stipulation of settlement in a matrimonial action, the plaintiff husband appeals from an order of the Supreme Court, Rockland County (Marbach, J.), dated May 2, 1985, which denied his motion for leave to enter a default judgment against the defendant wife, and granted the defendant wife's cross motion to compel the plaintiff husband to accept late service of her answer.
ORDERED that the order is modified, on the law and in the exercise of discretion, by (1) deleting the provisions thereof which denied the plaintiff's motion for leave to enter a default judgment against the defendant and granted the cross motion of the defendant to compel the plaintiff to accept service of her late answer, and substituting therefor provisions granting the plaintiff's motion to the extent that he is awarded a default judgment on his first cause of action to compel specific performance of the provision of the parties' stipulation of settlement whereby the defendant wife agreed to purchase the equity of the plaintiff in certain real property, and otherwise denying his motion, and (2) denying the defendant's cross motion. As so modified, the order is affirmed, without costs or disbursements.
A stipulation of settlement entered into by the parties in open court in a matrimonial action provided, inter alia, that the marital residence "shall be sold" (emphasis added) at fair market value in the event one of the parties permanently vacated the premises, and the party still residing in the premises would have an option to purchase the premises. In the event the party residing in the premises failed to exercise that option, then the other party would have the option to purchase the premises. If the parties could not agree on the fair market value of the property, the stipulation provided for a multi-appraisal method to determine value. The stipulation further provided that the purchase by one party of the other party's equity in the marital premises was to be completed at a closing not to exceed 60 days from the exercise of the option to purchase. The stipulation survived, but did not merge into the divorce judgment.
Shortly after the plaintiff husband permanently vacated the marital premises, he erroneously attempted to exercise the option to purchase the defendant wife's half interest in the premises for $52,000, forwarding her an appraisal he obtained which estimated the fair market value of the entire property at $104,000. By letter dated March 16, 1984, the wife's attorney correctly informed the husband's attorney that the wife had the option to purchase the premises, pursuant to the in-court stipulation, and that she was exercising that option to purchase the husband's half share in the marital residence for the sum of $52,000. Thereafter, the wife was unable to obtain the requisite financing to purchase husband's share, and thus, she could not close within the 60-day period designated in the stipulation. A few days after expiration of the 60-day period, the husband tendered $52,000 for the purchase of wife's share in the marital residence, but she did not accept the tender or convey her share. Thereafter, in August 1984, the wife had the property appraised for $165,000.
By order to show cause dated October 6, 1984, the wife moved to compel the husband to comply with the multi-appraisal method set forth in the stipulation for fixing the fair market value of the marital home, which was applicable when the parties did not agree on the fair market value of the property, and to direct the husband to exercise his option to purchase at the value fixed by the multi-appraisal method. The motion was ultimately denied on the ground that a plenary action had to...
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