Kumar v. Kumar

• Decision Date: 28 June 2012
• Citation: 947 N.Y.S.2d 675,2012 N.Y. Slip Op. 05226,96 A.D.3d 1323
• Parties: Satish KUMAR, Respondent–Appellant, v. Aruna KUMAR, Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1323

947 N.Y.S.2d 675

2012 N.Y. Slip Op. 05226

Satish KUMAR, Respondent–Appellant,

v.Aruna KUMAR, Appellant–Respondent.

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

June 28, 2012.

Martin, Shudt, Wallace, DiLorenzo & Johnson, Albany (Robert L. Adams of counsel), for appellant-respondent.

Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Mark E. Cerasano of counsel), for respondent-appellant.

Before: SPAIN, J.P., KAVANAGH, STEIN, McCARTHY and EGAN JR., JJ.

STEIN, J.

Cross appeals from an order of the Supreme Court (Nolan Jr., J.), entered January 26, 2011 in Saratoga County, which, among other things, partially denied the parties' motions for, among other things, summary judgment.

In 1997, plaintiff (hereinafter the husband) commenced an action for divorce against defendant (hereinafter the wife). A judgment of divorce was entered in January 2001 which, as pertinent here, incorporated an August 2000 stipulation between the parties concerning, among other things, the distribution of their marital property. Annexed to the stipulation and referenced therein was a statement of proposed disposition (hereinafter SPD) prepared by the husband, which purported to accurately identify all marital assets, the value of which was to be divided equally between them.

In 2004, the husband commenced this action to set aside the stipulation on the basis that the wife had fraudulently concealed the existence of marital assets prior to settlement of the divorce action; the husband sought, among other things, an order directing the wife to pay him 50% of the value of the concealed assets. In her answer, the wife asserted counterclaims—alleging, among other things, that the husband had converted and secreted marital funds and had intentionally failed to distribute them to her pursuant to the stipulation—and sought vacatur of the stipulation. Following a nonjury trial, at which the wife presented no evidence as a result of a preclusion order, Supreme Court (Seibert, J.) found that the wife had fraudulently concealed the existence of marital assets and directed the parties to equally divide all of their marital property. Upon the wife's appeal, we reversed and remitted the matter to Supreme Court, finding error in its order precluding the wife from offering evidence at the trial (63 A.D.3d 1246, 1248–1249, 881 N.Y.S.2d 518 [2009] ).

In 2009, the husband filed and served an amended complaint asserting claims alleging fraud and unjust enrichment and seeking vacatur of the stipulation, as well as a direction from Supreme Court that the wife distribute 50% of the value of all concealed assets. The wife served an amended answer in which she asserted counterclaims seeking, among other things, recovery of marital assets allegedly converted by the husband; notably, she did not reassert her claim seeking vacatur of the August 2000 stipulation.

The wife thereafter moved for summary judgment dismissing the complaint and for relief based upon her counterclaims. The husband cross-moved for, among other things, leave to file a second amended complaint—which sought to add a cause of action for enforcement, in addition to the existing cause of action seeking vacatur of the parties' stipulation—as well as summary judgment on his claims and dismissing the wife's counterclaims. Supreme Court (Nolan Jr., J.) concluded, as pertinent here, that the August 2000 stipulation was valid and enforceable, that all of the parties' marital property—whether or not specifically identified in the stipulation—was subject to distribution pursuant to its terms and that certain bank accounts held by the wife constituted marital property. Accordingly, the court granted partial summary judgment dismissing both parties' causes of action for vacatur of the stipulation,¹ otherwise denied the wife's motion for summary judgment dismissing the complaint and granted the husband's cross motion for leave to amend the complaint. In addition, the court partially granted the husband's motion for summary judgment to the extent that it dismissed the wife's counterclaims as they related to financial transactions prior to 1997. The wife now appeals ² and the husband cross-appeals.

Initially, we concur with the wife's contention that Supreme Court erred in concluding that marital assets not specifically identified in the parties' stipulation are subject to distribution pursuant to its terms. It is well settled that a stipulation incorporated, but not merged, into a judgment of divorce is a contract and is, therefore, subject to the rules governing contract interpretation ( see McCoy v. Feinman, 99 N.Y.2d 295, 302, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002];Dagliolo v. Dagliolo, 91 A.D.3d 1260, 1260, 937 N.Y.S.2d 466 [2012];LaPierre v. LaPierre, 84 A.D.3d 1497, 1498, 922 N.Y.S.2d 627 [2011];Ross v. Ross, 16 A.D.3d 713, 714, 791 N.Y.S.2d 187 [2005] ). Accordingly, where an agreement is unambiguous, we must ascertain the parties' intent “from within the four corners of the instrument, and not from extrinsic evidence” ( Ross v. Ross, 16 A.D.3d at 714, 791 N.Y.S.2d 187 [internal quotation marks and citations omitted]; see McCoy v. Feinman, 99 N.Y.2d at 302, 755 N.Y.S.2d 693, 785 N.E.2d 714;Dagliolo v. Dagliolo, 91 A.D.3d at 1260, 937 N.Y.S.2d 466).

Inasmuch as our review of the stipulation here reveals no ambiguity, we must give its terms their plain meaning ( see Dagliolo v. Dagliolo, 91 A.D.3d at 1260, 937 N.Y.S.2d 466;Matter of Lerman v. Haines, 85 A.D.3d 1248, 1248–1249, 925 N.Y.S.2d 216 [2011] ). The stipulation clearly provides that “[a]ll assets that are claimed to be marital property are identified in [the husband's] statement of proposed disposition,” and further provides that each party is to receive certain items of such property, resulting in a 50/50 division of the total value thereof. Notably, while the husband points to, and Supreme Court relies on, a particular statement contained in the SPD purportedly establishing the parties' intent to divide all marital property equally, the SPD was signed only by the husband and his attorney and reflects his pretrial proposal for equitable distribution; it cannot be said to reflect the wife's intent, nor is it a part of the stipulation. Thus, Supreme Court erroneously interpreted the stipulation as including assets not specifically identified in the husband's SPD.

However, we are also of the view that Supreme Court erred in granting the wife's motion for summary judgment dismissing the husband's cause of action for vacatur of the stipulation based upon the wife's alleged fraud in failing to disclose marital assets. In order to establish fraud, the husband is required to prove that the wife made a “misrepresentation of a material fact, which was known by [her] to be false and intended to be relied on when made, and that there was justifiable reliance and resulting injury” ( Ventur Group, LLC v. Finnerty, 68 A.D.3d 638, 639, 892 N.Y.S.2d 69 [2009] [internal quotation marks and citations omitted]; see GoSmile, Inc. v. Levine, 81 A.D.3d 77, 81, 915 N.Y.S.2d 521 [2010],lv. dismissed17 N.Y.3d 782, 929 N.Y.S.2d 83, 952 N.E.2d 1077 [2011] ). Here, Supreme Court properly determined that, to the extent the funds in the accounts allegedly...