Etzion v. Etzion

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, ARIEL E. BELEN and LEONARD B. AUSTIN, JJ.
• Citation: Etzion v. Etzion, 84 A.D.3d 1015, 924 N.Y.S.2d 438, 2011 N.Y. Slip Op. 4198 (N.Y. App. Div. 2011)
• Decision Date: 17 May 2011
• Parties: Deborah ETZION, appellant,v.Rafael ETZION, respondent, et al., defendants.

84 A.D.3d 1015

924 N.Y.S.2d 438

2011 N.Y. Slip Op. 04198

Deborah ETZION, appellant,

v.Rafael ETZION, respondent, et al., defendants.

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

May 17, 2011.

Samuelson Hause & Samuelson, LLP, Garden City, N.Y. (Glenn S. Koopersmith of counsel), for appellant.Blank Rome LLP, New York, N.Y. (Harris N. Cogan and Kevin R. Doherty of counsel), for respondent.DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, ARIEL E. BELEN and LEONARD B. AUSTIN, JJ.

In an action, inter alia, to recover damages for fraudulent misrepresentation in connection with negotiations relating to a stipulation of settlement dated June 8, 2005, which was incorporated, but not merged, into the judgment of divorce referable to the plaintiff former wife and the defendant former husband, Rafael Etzion, dated August 16, 2005, the plaintiff appeals from an order of the Supreme Court, Nassau County (Maron, J.), entered August 4, 2010, which denied her motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the counterclaim asserted by the defendant former husband, Rafael Etzion or, in the alternative, for summary judgment dismissing the counterclaim.

ORDERED that the order is reversed, on the law, with costs, that branch of the plaintiff's motion which was pursuant to CPLR 3211(a)(1) to dismiss the counterclaim asserted by the defendant former husband, Rafael Etzion, is granted, and those branches of the plaintiff's motion which were to dismiss the counterclaim pursuant to CPLR 3211(a)(7) or, in the alternative, for summary judgment dismissing the counterclaim, are denied as academic.

The facts of this action are set forth in our decision and order on a prior appeal ( see Etzion v. Etzion, 62 A.D.3d 646, 880 N.Y.S.2d 79).

On this appeal, the plaintiff contends that the Supreme Court erred in denying her motion pursuant to CPLR 3211(a)(1) and (7) to dismiss a counterclaim asserted by the defendant former husband, Rafael Etzion (hereinafter the defendant), for an award of an attorney's fee pursuant to the terms of a stipulation of settlement entered into by the defendant and the plaintiff on June 8, 2005, or, in the alternative, for summary judgment dismissing the counterclaim.

Parties are free to enter into agreements that “not only bind[ ] them, but which the courts are bound to enforce” ( Greve v. Aetna Live–Stock Ins. Co., 30 N.Y.S. 668, 670). Marital contracts are “subject to principles of contract [construction and] interpretation” ( Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258; see Matter of Meccico v. Meccico, 76 N.Y.2d 822, 823–824, 559 N.Y.S.2d 974, 559 N.E.2d 668; Girardin v. Girardin, 281 A.D.2d 457, 457, 721 N.Y.S.2d 672). Moreover, “[w]here a stipulation of settlement provides the basis for an award of an attorney's fee, the terms of the agreement control” ( Arato v. Arato, 15 A.D.3d 511, 512, 790 N.Y.S.2d 203; see Sweeney v. Sweeney, 71 A.D.3d 989, 992, 898 N.Y.S.2d 560).

“The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent” ( Greenfield v. Philles Records, 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166; see Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903). “Where ... the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence” ( Rainbow v. Swisher, 72 N.Y.2d at 109, 531 N.Y.S.2d 775, 527 N.E.2d 258; see Matter of Meccico v. Meccico, 76 N.Y.2d 822, 559 N.Y.S.2d 974, 559 N.E.2d 668; Clark v. Clark, 33 A.D.3d 836, 837, 827 N.Y.S.2d 159; see also Kass v. Kass, 91 N.Y.2d 554, 556, 673 N.Y.S.2d 350, 696 N.E.2d 174). “Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” ( Greenfield v. Philles Records, 98 N.Y.2d at 569, 750 N.Y.S.2d 565, 780 N.E.2d 166; see W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639).

“ ‘[C]ourts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing’ ” ( Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475, 775 N.Y.S.2d 765, 807 N.E.2d 876, quoting Reiss v. Financial Performance Corp., 97 N.Y.2d 195, 199, 738 N.Y.S.2d 658, 764 N.E.2d 958; see Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 13 N.Y.3d 398, 404, 892 N.Y.S.2d 303, 920 N.E.2d 359; McWade v. McWade, 253 A.D.2d 798, 799, 677 N.Y.S.2d 596). Thus, a court “will not imply a term where the circumstances surrounding the formation of the contract indicate that the parties, when the contract was made, must have foreseen the contingency at issue and the agreement can be enforced according to its terms” ( Reiss v. Financial Performance Corp., 97 N.Y.2d at 199, 738 N.Y.S.2d 658, 764 N.E.2d 958; see Henrich v. Phazar Antenna Corp., 33 A.D.3d 864, 867, 827 N.Y.S.2d 58). “The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court” ( Franklin Apt. Assoc., Inc. v. Westbrook Tenants Corp., 43 A.D.3d 860, 861, 841 N.Y.S.2d 673; see Katina, Inc. v. Famiglietti, 306 A.D.2d 440, 441, 761 N.Y.S.2d 327).

Here, the defendant's counterclaim for an award of an attorney's fee is based on an overbroad reading of an attorney's-fee provision in the parties' stipulation of settlement executed on June 8, 2005 (hereinafter the agreement), which was subsequently incorporated, but not merged, into their judgment of divorce. The parties' separation agreement, at Article XXV, paragraph 3, states, in relevant part:

“In the event either party is forced to seek aid of counsel in enforcing any rights pursuant to this Stipulation, and in the event that party is successful in enforcing such right(s), the other shall reimburse him or her for any reasonable attorneys' fees necessarily incurred in enforcing such rights. The provisions of this paragraph shall be in addition, and without prejudice or limitation, to any other rights or remedies to which the aggrieved party may be entitled. The parties agree that the purpose of this paragraph is to prevent unnecessary litigation between them and to encourage...