Hackett v. Hackett, 3338/2008.
| Decision Date | 21 February 2012 |
| Docket Number | No. 3338/2008.,3338/2008. |
| Citation | 950 N.Y.S.2d 608 |
| Parties | Roland HACKETT, Plaintiff, v. Carol HACKETT, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Corey M. Shapiro, Esq., New York, Attorney for the Plaintiff.
Sherman S. Sosnow, Esq., Brooklyn, Attorney for the Defendant.
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¦The following papers numbered 1 to 12 read herein: ¦Papers Numbered ¦
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¦Notice of Motion/Order to Show Cause/ ¦ ¦
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¦Petition/Cross Motion and ¦ ¦
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¦Affidavits (Affirmations) Annexed ¦1–2, 4–5 ¦
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¦Opposing Affidavits (Affirmations) ¦6, 7 ¦
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¦Reply Affidavits (Affirmations) ¦8 ¦
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¦Affidavit (Affirmation) ¦3, 9–11 ¦
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¦Other Papers Special Referee's file ¦12 ¦
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Upon the foregoing papers, plaintiff Ronald Hackett moves, pursuant to CPLR 4403, for an order: (1) rejecting that part of Special Referee Charmaine Henderson's Report and Recommendations on Order of Reference After Trial (the Report), dated May 26, 2011 which denies plaintiff's claim for reformation based upon mutual mistake; (2) confirming that part of the Report which denies defendant Carol Hackett's counterclaims not withdrawn at trial; (3) rejecting that part of the Report which grants defendant counsel fees; and (4) granting to plaintiff such other, further and different relief as the court finds just and proper, together with the costs and disbursements of this action.
Defendant also moves, pursuant to CPLR 4403, for an order: (1) confirming that part of the Report which dismisses the complaint with costs, and the counterclaims of defendant; (2) confirming in part the award of counsel fees in the Report, in the sum of $10,000.00 to defendant, and adjusting the amount to cover all of defendant's counsel fees in the sum of $45,084.70 ($6,000.00 to be paid by plaintiff to defendant, and $39,084.70 to be paid by plaintiff to defendant's counsel); (3) awarding defendant reasonable counsel fees for the instant proceedings and prosecution of this application; and (4) granting defendant such other and further relief as the court finds just and proper.
Plaintiff and defendant were married on November 20, 1982. Plaintiff commenced an action for divorce in the Supreme Court, Kings County, on February 1, 2005. The parties settled the divorce action by entering into a marital settlement agreement (the Agreement) duly executed on January 12, 2006, the same date the parties were set to appear before the court for an inquest. The distribution of the marital estate was set forth in a schedule incorporated by reference and annexed to the Agreement (Schedule A). At the January 12, 2006 hearing before the Honorable Jeffrey S. Sunshine, the court allocuted the parties on the Agreement, under oath; both parties stated, among other things, that they read the Agreement prior to executing same, fully understood its terms, and understood that it was a full and final agreement. The Agreement was incorporated but not merged in the Judgment of Divorce entered by this court on February 9, 2006.
Pursuant to “Allocation of Property” paragraph on page 5 of the Agreement, the parties agreed that they “have evaluated their marital property' and/or separate property' and have arrived at an allocation and division thereof which they deem to be fair and equitable distribution considering all the financial, emotional and other facts and circumstances of their marriage.” With respect to the marital residence located at 984 East 56th Street in Brooklyn, New York, the Agreement states that there exists on the property a first mortgage held by Washington Mutual, as well as a Washington Mutual home equity line of credit. The appraised value of the residence is listed as $465,000.00, leaving an estimated equity of $264,447.00 in the home. The Agreement further provides that:
Pages 6 and 7 of the Agreement also state, among other things, that plaintiff is the sole owner of the business, Zuni Corporation, located at 598 Ninth Avenue, in New York, New York, which has a stipulated value of $325,000.00. Pages 7 through 9 of the Agreement contain the agreed upon distribution of the remaining marital assets, including: defendant's pension plan, various checking and savings accounts, investments, life insurance policies, IRA accounts and vehicles. Moreover, the Agreement states that the parties jointly own two funeral plots at Woodbridge Memorial Gardens in New Jersey, which they agree to sell to the highest bidder, and then equally divide the proceeds after the costs of the sale.
The “Allocation and Division of Martial Property and Debt” paragraph on page 9 of the Agreement states that:
In addition, pursuant to the “Joint Income Taxes and 2002/2003 Income Tax Refund” paragraph on page 11 of the Agreement, “[a]ny income tax refunds for the years 2002 and 2003, if received by the Husband during pendency of the divorce action shall be divided qually by the parties.”
The “Default” paragraph on pages 13 and 14 of the Agreement also provides that:
“[i]n the event that either party, or his or her estate, shall be adjudged by a court of competent jurisdiction to have defaulted in the performance of the terms or provisions of this agreement, the party so adjudged, or his or her estate, shall be liable for and shall pay to the other party, or the other person having right of enforcement hereunder, reasonable attorneys' fees incurred in enforcing such performance, the amount of such attorneys' fees to be determined by said court without a jury, the parties expressly waiving trial by jury in that respect ... Neither party, nor his or her estate, shall seek to enforce the terms of this agreement by a judicial proceeding unless he or she shall first have given notice to the other party of his or her intention to hold him or her in default and said default shall have continued for ten (10) days after the date of such notice to cure said default.”
Schedule A, which is annexed to the Agreement, provides, in summary, as follows:
ASSETS
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...and Trustees § 942). If an act may be ratified, it is voidable rather than void. See Hackett v. Hackett, 34 Misc.3d 1233(A), 950 N.Y.S.2d 608, 2012 WL 669525, at *20 (N.Y.Sup.Ct. Feb. 21, 2012) (“A void contract cannot be ratified; it binds no one and is a nullity. However, an agreement tha......
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Banares v. Wells Fargo Bank, N.A.
...at 8-10, and that acts that may be ratified are "voidable" rather than "void." Calderon, 941 F. Supp. 2d at 766-67 (citing Hackett v. Hackett, 950 N.Y.S.2d 608 (unreported), 2012 WL 669525 at * 20 (N.Y.Sup. Ct. Feb. 21, 2012), which in turn cites 27 Williston on Contracts § 70:13 (4th ed.) ......