Flaherty v. Lynch

Citation738 N.Y.S.2d 78,292 A.D.2d 340
PartiesPATRICIA FLAHERTY et al., Appellants,<BR>v.<BR>DEAN LYNCH, Respondent.
Decision Date04 March 2002
CourtNew York Supreme Court Appellate Division

Ritter, J.P., Smith, Krausman and Townes, JJ., concur.

Ordered that the order is affirmed, with costs.

In this divorce action, the defendant, Dean Lynch, and his wife, Debra Lynch (hereinafter the wife), entered a stipulation of settlement on the record by which the defendant husband agreed to withdraw his answer in exchange for certain considerations. The divorce was granted based on the stipulation, but entry of the judgment was expressly made subject to the Supreme Court's confirmation of certain conditions of the settlement which called for, inter alia, the establishment of a trust fund for their daughter by the wife as well as certain terms regarding distribution. The wife died before the conditions of the settlement were met. The defendant's motion to abate the action was granted and the plaintiffs' cross motion for leave to enter judgment nunc pro tunc was denied.

It is well settled that "a suit for divorce abates at the death of either party, because the marriage relation sought to be dissolved no longer exists, and a judgment cannot thereafter be entered nunc pro tunc unless the complainant was entitled to have had such judgment entered while both parties were living" (Cornell v Cornell, 7 NY2d 164, 169-170). Here, at the time that the stipulation of settlement was entered on the record, both the defendant and the wife, and the court, understood that judgment would not be entered until the terms of the settlement were met and the Supreme Court gave its approval. The wife, who died before the terms were met, was not entitled to have the judgment entered while she was still living. Thus, the judgment cannot now be entered nunc pro tunc (see, Cornell v Cornell, supra).

The plaintiffs' remaining contentions are without merit.

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6 cases
  • Bordas v. Bordas
    • United States
    • New York Supreme Court — Appellate Division
    • December 2, 2015
    ...Cornell v. Cornell, 7 N.Y.2d 164, 169, 196 N.Y.S.2d 98, 164 N.E.2d 395; King v. Kline, 65 A.D.3d 431, 884 N.Y.S.2d 229; Flaherty v. Lynch, 292 A.D.2d 340, 738 N.Y.S.2d 78; Matter of Forgione, 237 A.D.2d 438, 655 N.Y.S.2d 552; Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279; Davis v. D......
  • Bomer v. Dean
    • United States
    • New York Supreme Court — Appellate Division
    • June 17, 2021
    ...) and, with respect to those issues, applies regardless of which spouse—payee or payor—has died (see generally id. ; Flaherty v. Lynch , 292 A.D.2d 340, 341, 738 N.Y.S.2d 78 [2d Dept. 2002], lv denied 99 N.Y.2d 529, 752 N.Y.S.2d 586, 782 N.E.2d 563 [2002] ). There are, however, some excepti......
  • First Metlife Investors Ins. Co. v. Filippino
    • United States
    • New York Supreme Court — Appellate Division
    • March 6, 2019
    ...designation (see Bordas v. Bordas, 134 A.D.3d 660, 19 N.Y.S.3d 763 ; King v. Kline, 65 A.D.3d 431, 884 N.Y.S.2d 229 ; Flaherty v. Lynch, 292 A.D.2d 340, 738 N.Y.S.2d 78 ).However, we agree with the Supreme Court's determination denying that branch of Amato's cross motion which was for summa......
  • EREDICS v. CHASE MANHATTAN BANK, NA
    • United States
    • New York Supreme Court — Appellate Division
    • March 4, 2002
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