Montero v. Montero

• Decision Date: 21 June 2011
• Citation: 85 A.D.3d 986,926 N.Y.S.2d 573,2011 N.Y. Slip Op. 05466
• Parties: Nives MONTERO, respondent,v.Carlos MONTERO, appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 986
926 N.Y.S.2d 573
2011 N.Y. Slip Op. 05466

Nives MONTERO, respondent,
v.
Carlos MONTERO, appellant.

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

June 21, 2011.

[926 N.Y.S.2d 573]

Amy Mosery, Woodmere, N.Y. (Alexander Potruch of counsel), for appellant.

[926 N.Y.S.2d 574]

Del Vecchio & Racine, LLP, Garden City, N.Y. (Jaclene Agazarian and Steven M. Del Vecchio of counsel), for respondent.PETER B. SKELOS, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and LEONARD B. AUSTIN, JJ.

[85 A.D.3d 986] In a matrimonial action in which the parties were divorced by judgment entered August 17, 2005, as amended October 27, 2005, the defendant appeals from (1) an order and money judgment (one paper) of the Supreme Court, Nassau County (Falanga, J.), dated October 29, 2009, which, upon a decision of the same court dated August 12, 2009, made after a hearing, inter alia, granted the plaintiff's motion to reform the parties' stipulation of settlement, thereupon directed that the plaintiff was entitled to 50% of the value of the defendant's Individual Retirement Account referred to as the “Bear Stearns IRA,” as of October 18, 2001, and is in favor of the plaintiff and against him in the principal sum of $540,958.70, and (2) an order of the same court dated December 15, 2009, which granted the plaintiff's postjudgment motion for an award of an attorney's fee in the sum of $34,707.60.

ORDERED that the order and money judgment, and the order, are affirmed, with one bill of costs.

On March 24, 2005, several months before entry of a judgment of divorce, the parties orally placed a stipulation of settlement concerning equitable distribution, among other things, on the record. The attorney who recited its terms, however, omitted[85 A.D.3d 987] the correct institutional name of a particular individual retirement account held by the defendant former husband at Bear Stearns (hereinafter the account). In 2009 the plaintiff former wife sought reformation of the stipulation. The Supreme Court conducted a lengthy hearing, after which it held that the plaintiff established, by clear and convincing evidence, that the parties had intended to divide the account between them equally, and that the attorney who recited the terms of the stipulation had inadvertently misstated the name of the account. This inadvertent misstatement had resulted in the defendant's retention of ownership of 100% of the account, and the Supreme Court granted the plaintiff's motion to...