Levakis v. Levakis

• Decision Date: 08 June 2010
• Citation: 902 N.Y.S.2d 644,74 A.D.3d 899
• Parties: Mary LEVAKIS, appellant-respondent, v. Vassilios LEVAKIS, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 644

74 A.D.3d 899

Mary LEVAKIS, appellant-respondent,

v.Vassilios LEVAKIS, respondent-appellant.

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

June 8, 2010.

Tabat, Cohen, Blum & Yovino, LLP, West Islip, N.Y. (Robert A. Cohen of counsel), for appellant-respondent.

Andrew M. Doktofsky, Huntington, N.Y., for respondent-appellant.

PETER B. SKELOS, J.P., RUTH C. BALKIN, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from stated portions of an order of the Supreme Court, Suffolk County (Cohen, J.), dated October 6, 2008, which, after a hearing, inter alia, in effect, granted the defendant's motion to enforce certain handwritten provisions in the parties' stipulation of settlement, and the defendant cross-appeals, as limited by his brief, from so much of the same order as, upon, in effect, granting his motion, directed that he was entitled only "to one-third of the value of a house valued at $420,000.00 and adjoining the Palace Diner with 60% of the proceeds 'flowing' to Plaintiff."

ORDERED that the order is modified, on the law and the facts, (1) by deleting from the third decretal paragraph thereof the words "to one-third of the value of a house valued at $420,000.00and adjoining the Palace Diner with 60% of the proceeds 'flowing' to Plaintiff," and substituting therefor the words "to receive the 'value' of the 'credit' for the transfer of his one-third ownership interest in the property located at 142-12 60th Avenue, Flushing, New York, consisting of a house and an adjacent 'unimproved' lot' in the sum of $125,166," and (2) by deleting the fourth decretal paragraph thereof directing "that defendant is entitled to one third of the value of an unimproved lot adjacent to the Palace Diner valued at $83,000.00"; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs payable to the defendant.

The plaintiff wife commenced this action for a divorce and ancillary relief in 2002. The parties negotiated a stipulation of settlement in court over a period of two days, and signed it in August 2005. The stipulation was incorporated, but not merged, into the judgment of divorce. At issue on this appeal is the interpretation of three handwritten phrases in the stipulation of settlement.

The assets that were to be distributed pursuant to the stipulation included (1) the defendant's one-third ownership interest in 60-05 Main Street Enterprises Corp., doing business as the Palace Diner, in Queens (hereinafter the Palace Diner), which included his one-third ownership of the commercial real estate where the Palace Diner was located, (2) the jointly owned marital residence, (3) the defendant's one-third ownership interest in a parcel of real property located at 142-12 60th Avenue in Flushing, Queens, whichconsisted of a house and an adjoining, unimproved lot (hereinafter the 60th Avenue property), located next to the Palace Diner, and (4) the sum of $48,500 held in an escrow account by the defendant's then-attorney.

The stipulation contained a provision stating that the plaintiff was to receive 60% of the sum the defendant was to receive in connection with a pending buyout of his one-third interest in the Palace Diner, and the real property owned by the diner. The stipulation also included three provisions which contained the contested handwritten portions. At issue herein are two provisions directing that (1) the marital residence and (2) the defendant's one-third interest in the 60th Avenue property, respectively, be distributed to the plaintiff, each with a handwritten notation stating: "the value of which shall be credited to [defendant] as equitable distribution," and another provision directing that money in an escrow account was to be distributed to the plaintiff, which contained a handwritten provision stating: "the sum of which shall be credited to [defendant] as equitable distribution."

After the divorce, the defendant deeded the marital residence and his one-third interest in the 60th Avenue property to the plaintiff, in accordance with the stipulation. In November 2007 the defendant moved, by order to show cause, inter alia, to enforce his right to receive a credit for those assets transferred to the plaintiff which were subject to the handwritten provisions, such credit to be applied as an offset against the 60% share of the money he would receive from the Palace Diner buy-out that he was to pay the plaintiff. The plaintiff opposed the motion,...