Pappas v. Pappas

• Court: New York Supreme Court — Appellate Division
• Citation: Pappas v. Pappas, 2016 NY Slip Op 4392, 140 A.D.3d 838, 36 N.Y.S.3d 661 (N.Y. App. Div. 2016)
• Decision Date: 08 June 2016
• Parties: Maria PAPPAS, respondent, v. Anthony PAPPAS, appellant.

140 A.D.3d 838

36 N.Y.S.3d 661

2016 N.Y. Slip Op. 04392

Maria PAPPAS, respondent,

v.Anthony PAPPAS, appellant.

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

June 8, 2016.

Langione, Catterson & LoFrumento, LLP, Garden City, N.Y. (Jeffrey L. Catterson of counsel), for appellant.

Kruman & Kruman, P.C., Malverne, N.Y. (Henry E. Kruman of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, CHERYL E. CHAMBERS, and HECTOR D. LaSALLE, JJ.

Appeal from stated portions of a judgment of the Supreme Court, Nassau County (Hope Schwartz Zimmerman, J.), entered December 10, 2013. The judgment, inter alia, awarded the plaintiff a distributive award in the sum of $1,923,361, together with prejudgment interest at the rate of 6% per annum, and failed to award the defendant certain assets.

ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provisions thereof awarding the plaintiff a distributive award in the sum of $1,923,361, together with prejudgment interest at the rate of 6% per annum; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

In this matrimonial action, after a nonjury trial on the financial issues, the Supreme Court issued a decision and order dated September 9, 2013, determining the value of the parties' various assets and directing the equitable distribution of the marital property. On December 10, 2013, the court entered judgment upon the decision and order, inter alia, awarding the plaintiff a distributive award in the sum of $1,923,361, together with prejudgment interest at the rate of 6% per annum. The defendant appeals, contending, among other things, that the Supreme Court erred in determining that certain assets were marital property rather than the defendant's separate property, in valuing certain assets as of the date of the commencement of the action instead of the date of the trial, in awarding the plaintiff half of the value of certain nonliquid assets without consideration of the tax consequences of liquidating those assets, and in awarding the plaintiff prejudgment interest.

The trial court has broad discretion in selecting the dates for the valuation of marital assets and, depending on the particular circumstances of the case, may appropriately fix different valuation dates for different assets (see McSparron v. McSparron, 87 N.Y.2d 275, 287, 639 N.Y.S.2d 265, 662 N.E.2d 745 ; Kirshenbaum v. Kirshenbaum, 203 A.D.2d 534, 535, 611 N.Y.S.2d 228 ; Siegel v. Siegel, 132 A.D.2d 247, 523 N.Y.S.2d 517 ; Wegman v. Wegman, 123 A.D.2d 220, 509 N.Y.S.2d 342, amended). Here, the Supreme Court providently exercised its discretion when it valued certain securities as of the date of commencement of this matrimonial action, since those securities constituted active assets (see Kirshenbaum v. Kirshenbaum, 203 A.D.2d at 535, 611 N.Y.S.2d 228 ). Furthermore, the Supreme Court properly considered disputed bank, custodial, securities, and trust accounts as marital property rather than as the defendant's separate property, since the defendant failed to rebut the presumption which arose from his commingling of funds (see id.; Pullman v. Pullman, 176 A.D.2d 113, 573 N.Y.S.2d 690 ; Lischynsky v....