Lanza v. Carbone

• Citation: 13 N.Y.S.3d 472,2015 N.Y. Slip Op. 05917,130 A.D.3d 689
• Decision Date: 08 July 2015
• Docket Number: 2013-10557
• Parties: Cristina LANZA, appellant, v. Davide CARBONE, respondent.
• Court: New York Supreme Court Appellate Division

130 A.D.3d 689
13 N.Y.S.3d 472
2015 N.Y. Slip Op. 05917

Cristina LANZA, appellant
v.
Davide CARBONE, respondent.

2013-10557

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

July 8, 2015.

13 N.Y.S.3d 473

Sanctuary For Families, Inc., New York, N.Y. (Amanda Norejko of counsel), and Kasowitz, Benson, Torres & Friedman, New York, N.Y. (Benjamin N. Kopelman of counsel), for appellant (one brief filed).

Michael Stepper, New York, N.Y., for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and JOSEPH J. MALTESE, JJ.

Opinion

130 A.D.3d 689

Appeal from an order of the Supreme Court, Queens County (David Elliot, J.), entered August 21, 2013. The order, insofar as appealed from, denied, without a hearing, that branch of the plaintiff's motion which was, in effect, for a money judgment for arrears due and owing under a certain provision of the parties' separation agreement dated December 1, 2008, which was incorporated, but not merged, into the judgment of divorce entered December 20, 2012, requiring the defendant to pay her the sum of $30,000 in exchange for her interest in a business that the parties co-owned at the time of the marriage.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was, in effect, for a money judgment for arrears due and owing under a certain provision of the parties' separation agreement dated December 1, 2008, which was incorporated, but not merged, into the judgment of divorce entered December 20, 2012, requiring the defendant to pay her

13 N.Y.S.3d 474

the sum of $30,000 in exchange for her interest in a business that the parties co-owned at the time of the marriage is granted, and the matter is remitted to the Supreme Court, Queens County, for the entry of an appropriate money judgment in favor of the plaintiff and against the defendant in accordance herewith.

The parties married on September 17, 2007. Approximately 14 months later, on December 1, 2008, the parties entered into a separation agreement in which they agreed, among other things, to live separate and apart, and to be free from harassment or interference “relating to each party's immigration status.” At the time they entered into the agreement, the parties were co-owners of a business, Asterisko, LLC, and they agreed that it was valued at approximately $60,000. The separation agreement contained a provision entitled “Marital Interest in Business,” which required the plaintiff, Cristina Lanza, to transfer her interest in the business to the defendant, Davide Carbone. As consideration for transferring her interest in the business, the defendant was required to pay the plaintiff $30,000. The provision of the separation agreement entitled “Marital Interest in Business” further provided, in pertinent part, as follows:

“[the $30,000] payment shall be made [over] a term of five (5) years, commencing ninety (90) days after the date [on which the defendant] obtains an E–2

130 A.D.3d 690

Dependent Immigration Visa from the U.S. Consulate of Milan, Italy, or the signing of the documents necessary to effectuate the [transfer of the business], whichever later occurs. [The plaintiff] hereby covenants and agrees to (i) fully cooperate with [the defendant] in order to sponsor [him] for an E–2 Dependent Visa, or other similar Visa, to the extent it allows [him] to legally work in the United States, and (ii) to provide [necessary information and documents].”

Further, the plaintiff agreed that revocation or termination of the defendant's E–2 dependent visa (also termed a derivative visa), or any other visa that he obtained by virtue of her sponsorship, due to her “actions, neglect or failure to act” within three years from the date of the separation agreement would constitute a material breach of the agreement. The separation agreement denominated the described breach as a “Visa Breach.”

Significantly, if the defendant filed for divorce before the expiration of the three-year period, and thereby made himself ineligible for a visa as the plaintiff's spouse, her obligation to maintain the visa would terminate, but the defendant would still be obligated “to pay the equitable distribution of the value of the [business].” Similarly, if the plaintiff lost her visa or her ability to sponsor the defendant for a visa through no fault or action of her own, the defendant would still be obligated “to pay the equitable distribution of the value of the [business].” The separation agreement also provided, in pertinent part, that “[i]f any provision of this Agreement should be held to be invalid or unenforceable under the laws of any State, country or other jurisdiction, the remainder of this Agreement shall continue in full force and effect.”

Contemporaneously with the execution of the separation agreement, the plaintiff transferred her 50% interest in the business to the defendant. Sixteen months later, on April 26, 2010, the defendant obtained an E–2 dependent visa (hereinafter the visa). Thus, pursuant to the terms of the separation agreement, the defendant's first payment of $3,000 became due 90 days later. However, as of July 29, 2010, more than 90 days after the defendant obtained the visa, he had paid only $2,700. He made additional payments to

13 N.Y.S.3d 475

the plaintiff, but he failed to pay the rest of the $30,000 due under the terms of the separation agreement.

In May 2012, more than two years after the defendant obtained the visa, the plaintiff commenced an action for a divorce and ancillary relief based upon the parties living separate and apart pursuant...