Davis v. Davis

• Decision Date: 09 June 1983
• Citation: Davis v. Davis, 463 N.Y.S.2d 462, 95 A.D.2d 674 (N.Y. App. Div. 1983)
• Parties: Edith K. DAVIS, Plaintiff-Appellant, v. Edward S. DAVIS, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 462

463 N.Y.S.2d 462

95 A.D.2d 674

Edith K. DAVIS, Plaintiff-Appellant, v.Edward S. DAVIS, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

June 9, 1983.

J.P. Giasi, Jr., New York City, for plaintiff-appellant.

P.L. Friedman, New York City, for defendant-respondent.

Before MURPHY, P.J., and ROSS, ASCH, MILONAS and KASSAL, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County, entered on February 15, 1983, which denied plaintiff's motion for summary judgment and for dismissal of defendant's counterclaims, is modified on the law to the extent of dismissing the first and second counterclaims and dismissing the fourth counterclaim except to the extent of $500, and otherwise affirmed, without costs or disbursements.

The parties herein were married on November 20, 1959.On or about February 9, 1971, they entered into a separation agreement which was subsequently incorporated, but not merged, into a judgment of divorce granted by the Republic of Mexico.Pursuant to paragraph 3a of the agreement, the defendant-husband promised to pay the plaintiff-wife the sum of $2000 on the fifth day of each month for the support and maintenance of her and their two children.The agreement also contained a clause requiring that the defendant pay additional alimony in proportion to certain increases in his annual income.For over eleven years, the defendant complied with the obligations imposed upon him by the separation agreement.However, beginning in July of 1982, he ceased to make any further payment.Although the defendant denies that any sum is due and owing to his former wife, he does not dispute that the payments in question were not made.Instead, he has raised four affirmative defenses and counterclaims.

Plaintiff moved for summary judgment and for dismissal of the defendant's counterclaims, arguing, in part, that the first and second counterclaims were barred by the applicable statutes of limitations and that the fourth counterclaim was so barred except to the extent of $500.In denying the motion in full, Special Term held that since the counterclaims at issue arose out of the same transaction as that alleged in the complaint (execution and delivery of the separation agreement), they were not precluded by the relevant statutes of limitation.We disagree.

The first counterclaim asserts mutual mistake in the drafting of the support provision of the agreement.In that regard, the defendant seeks the equitable relief of reformation of the agreement.An action to reform an agreement based on mutual mistake must be commenced within six years of the occurrence (CPLR 213(6)) or two years from the discovery of the mistake (CPLR 203(f)).The alleged mutual mistake occurred some time during or prior to 1971, when the agreement was entered into by the parties, and discovery of that mistake took place no later than in 1974 when the plaintiff informed the defendant that she had procured employment.Applying either criterion, the statute of limitations expired long before the plaintiff instituted suit in October of 1982.

The second counterclaim is based on fraud and contends that the plaintiff deceived the defendant in representing to him that she would never be able to support and maintain herself or to obtain work.The purported fraud, however, occurred prior to the execution of the agreement, and the defendant supposedly learned of that fraud no later than 1974.In both instances, the claim is barred by the statute of limitations.(CPLR 213(8)andCPLR 203(f)).

The fourth counterclaim requests repayment of $4,875 plus...