Sperber v. Schwartz
| Decision Date | 18 April 1988 |
| Citation | 139 A.D.2d 640,527 N.Y.S.2d 279 |
| Parties | Kalman Kenneth SPERBER, etc., Appellant-Respondent, v. Samuel R. SCHWARTZ, Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Freedman, Weisbein & Samuelson, P.C., Garden City (Elliot D. Samuelson, of counsel), for appellant-respondent.
Bennett, Scholly, Pape, Rice & Schure, Rockville Centre (Richard J. Schure, of counsel), for respondent-appellant.
Before MANGANO, J.P., and BROWN, LAWRENCE and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding by the petitioner Kalman Kenneth Sperber, temporary administrator of the estate of the decedent Mindy Sue Schwartz, inter alia, to recover damages for the decedent's wrongful death and conscious pain and suffering, and to obtain equitable distribution of the marital property of the decedent and Samuel R. Schwartz, the decedent's former husband, the petitioner appeals, as limited by his notice of appeal and brief, from so much of an order of the Surrogate's Court, Nassau County (Radigan, S.), dated December 10, 1986, as denied his cross motion for summary judgment on the first cause of action for equitable distribution of property, and Samuel R. Schwartz cross-appeals from so much of the same order as denied that branch of his motion which was for summary judgment or dismissal pursuant to CPLR 3211(a)(7) of the petitioner's second cause of action for equitable distribution of property.
ORDERED that the respondent-appellant is awarded one bill of costs.
The record reveals that during the pendency of a divorce action brought by the decedent against Samuel R. Schwartz, the decedent was found murdered in the marital residence. The petitioner, the father of the decedent, secured appointment as the temporary administrator of her estate and thereafter commenced the instant proceeding with the approval of the Surrogate's Court, Nassau County. The first cause of action in the petition alleged that the decedent's estate was entitled to maintain an action for equitable distribution of the marital property owned by the decedent and Mr. Schwartz pursuant to Domestic Relations Law § 236(B), notwithstanding the fact that the decedent had met her untimely death during the pretrial phase of her divorce action and no judgment dissolving the marriage had been entered. The second cause of action set forth in the petition alleged that Mr. Schwartz, through acts of omission, commission or negligence, had caused or contributed to the cause of the decedent's death, and that he should therefore be equitably estopped from asserting any defense to the claim for equitable distribution under the general doctrine that a wrongdoer should not be permitted to profit from his own misdeeds.
Mr. Schwartz subsequently moved to dismiss the complaint, contending, inter alia, that any claim for equitable distribution abated upon the death of the decedent and that the allegations of the petition failed to set forth a cause of action regarding his alleged conscious and intentional involvement in the homicide. The petitioner cross-moved for summary judgment on the first cause of action for equitable distribution.
The Surrogate's Court, Nassau County, dismissed the first cause of action, reasoning that the right to equitable...
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...to the contrary, the husband relies upon Matter of Schwartz, 133 Misc.2d 1064, 509 N.Y.S.2d 729, mod sub nom., Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279. That case, however, is inapposite, as it merely stands for the general rule that where a party to a divorce action dies prior......
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... ... Under New York law, one spouse may validly own property separate and apart from the other spouse. See In re Schwartz, 133 Misc.2d 1064, 1065, 509 N.Y.S.2d 729, 731 (Surr.Ct. Nassau Cty.1986), rev'd in part, aff'd in part, 139 A.D.2d 640, 527 N.Y.S.2d 279 (1988); ... ...
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...York, 14 Domestic Relations Law § 236 Part B, 1989 Pocket Part, Practice Commentaries, C 236B:23 at 32 citing Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279 (2d Dept. 1988). Since no equitable distribution award had vested at the time of the filing of the petition, the 85th and 86th ......
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