Jolley v. Lando

• Decision Date: 02 October 2020
• Docket Number: 389,CA 18-01429
• Citation: 133 N.Y.S.3d 140,187 A.D.3d 1530
• Parties: Benjamin L. JOLLEY, Plaintiff-Respondent, v. Agostinha R. LANDO, Defendant-Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 1530

133 N.Y.S.3d 140

Benjamin L. JOLLEY, Plaintiff-Respondent,

v. Agostinha R. LANDO, Defendant-Appellant.(Appeal No. 1.)

389

CA 18-01429

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

Entered: October 2, 2020

MICHAEL A. ROSENHOUSE, ROCHESTER, FOR DEFENDANT-APPELLANT.

MILLER MAYER, LLP, ITHACA (ANTHONY N. ELIA, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by striking from the second ordering paragraph the sum of $238,670 and substituting therefor the sum of $104,350, and vacating the third and fourth ordering paragraphs and substituting therefor the provision that plaintiff is entitled to recover from defendant one-half the value of the Lindley property and the Country Walk Estates property, and as modified the order is affirmed without costs and the matter is remitted to Supreme Court, Steuben County, for further proceedings in accordance with the following memorandum: Plaintiff husband commenced this action seeking equitable distribution of marital assets after obtaining a divorce decree from Pennsylvania. In appeal No. 1, defendant wife appeals from an order that equitably distributed the marital property. In appeal No. 2, defendant appeals from an order that, inter alia, directed her to execute deeds to certain properties and to provide an accounting. In appeal No. 3, defendant appeals from an order directing her to execute those same deeds.

With respect to appeal No. 1, defendant contends that plaintiff's claim to equitable distribution is barred by the Pennsylvania divorce decree. We agree with plaintiff that defendant's contention is based on the defense of res judicata (see O'Connell v. Corcoran , 1 N.Y.3d 179, 182-184, 770 N.Y.S.2d 673, 802 N.E.2d 1071 [2003] ; Erhart v. Erhart , 226 A.D.2d 26, 27-29, 649 N.Y.S.2d 302 [4th Dept. 1996] ) and that she waived that defense by failing to raise it in either a pre-answer motion to dismiss or her answer (see CPLR 3211 [e] ; U.S. Bank N.A. v. Gilchrist , 172 A.D.3d 1425, 1426-1427, 102 N.Y.S.3d 625 [2d Dept. 2019] ; Country-Wide Ins. Co. v. Gotham Med., P.C. , 154 A.D.3d 608, 610, 63 N.Y.S.3d 349 [1st Dept. 2017] ; Matter of Hall , 275 A.D.2d 979, 979, 713 N.Y.S.2d 622 [4th Dept. 2000] ). Similarly, defendant's contention that plaintiff's claims with respect to the Lindley and Markle Hollow properties are barred by res judicata based on a prior proceeding to set aside the transfer of those properties to defendant has also been waived.

We reject defendant's further contention with respect to appeal No. 1 that Supreme Court's award of equitable distribution was barred by the antenuptial agreement signed by the parties. That agreement aimed to preserve property rights held individually by the parties and did not contemplate property that was or became jointly owned notwithstanding the terms of the agreement. Inasmuch as the agreement did not specify how marital property would be divided, the court properly equitably distributed the marital property. To the extent that defendant contends that the properties at issue were not marital property because she alone held title to those properties, we reject that contention inasmuch as a determination of whether property is marital does not depend on the form in which title is held (see Domestic Relations Law § 236 [B] [1] [c] ; Fields v. Fields , 15 N.Y.3d 158, 161-162, 905 N.Y.S.2d 783, 931 N.E.2d 1039 [2010], rearg denied 15 N.Y.3d 819, 908 N.Y.S.2d 152, 934 N.E.2d 885 [2010] ; Mattioli v. Mattioli , 48 A.D.3d 1143, 1144, 853 N.Y.S.2d 235 [4th Dept. 2008] ). Defendant correctly notes that the antenuptial agreement permitted gifts from one party to the other and required that, once gifted, the property was the separate property of the recipient. Defendant, however, transferred title to the Lindley and Markle Hollow properties to herself using a power of attorney that plaintiff had granted to her prior to the marriage. The fact that those transfers were made without plaintiff's knowledge belies any claim that they were gifts to defendant, and thus they were not defendant's separate property. With respect to the Country Walk Estates (CWE) property, the record supports the court's determination that, although plaintiff transferred title of that property to defendant, it was for convenience purposes and remained marital property (see generally Fields , 15 N.Y.3d at 162-163, 905 N.Y.S.2d 783, 931 N.E.2d 1039 ).

We agree with defendant, and plaintiff correctly concedes, that with respect to appeal No. 1 the court made errors in its...