Mistretta v. Mistretta

• Decision Date: 27 April 2016
• Citation: 138 A.D.3d 1075,28 N.Y.S.3d 896 (Mem)
• Parties: Loretta MISTRETTA, respondent, v. Peter MISTRETTA, appellant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1075
28 N.Y.S.3d 896 (Mem)

Loretta MISTRETTA, respondent,
v.
Peter MISTRETTA, appellant.

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

April 27, 2016.

Tor Jacob Worsoe, Jr., Holtsville, N.Y., for appellant.

Appeal from a judgment of divorce of the Supreme Court, Suffolk County (Santorelli, J.), entered January 16, 2014. The judgment of divorce, insofar as appealed from, upon an amended decision of the same court dated November 1, 2013, made after a nonjury trial, determined that certain premises are marital property subject to equitable distribution and directed the sale of those premises, with the parties to share equally in any net proceeds or deficiency from such sale.

ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff and the defendant were married in 1991 and lived together at the subject premises during the marriage. In 1996, the defendant's mother deeded the subject premises to him. In 2010, the

28 N.Y.S.3d 897

plaintiff commenced this action for a divorce and ancillary relief. The Supreme Court conducted an inquest and determined that the plaintiff was entitled to a divorce on the ground of constructive abandonment.

At a trial on the issue of whether the subject premises are marital property subject to equitable distribution, the defendant claimed that the subject premises were a gift from his mother, and therefore constituted separate property. However, he acknowledged that, for many years, he paid his mother $500 per month "rent." The defendant and his sister both acknowledged that rental income from the subject premises was paid to the defendant's mother pursuant to a written agreement between the defendant and his mother, which is included in the record.

In an amended decision after trial, later incorporated in the judgment of divorce, the Supreme Court determined that the subject premises are marital property subject to equitable distribution and directed the sale of the premises, with the parties to share equally in any net proceeds or...