T.P. v. S.P.

• Decision Date: 17 May 2023
• Docket Number: XXXXXX/2020,No. XXXXXX/2020
• Citation: T.P. v. S.P., 2023 NY Slip Op 50484(U), No. XXXXXX/2020 (N.Y. Sup. Ct. May 17, 2023)
• Parties: T.P., Plaintiff, v. S.P., Defendant.
• Court: New York Supreme Court

2023 NY Slip Op 50484(U)

T.P., Plaintiff, v. S.P., Defendant.

No. XXXXXX/2020

Supreme Court, Nassau County

May 17, 2023

Unpublished Opinion

Attorney for Plaintiff:

Firm Name: JASON M. BARBARA & ASSOCIATES, P.C.

Attorney for Defendant:

Firm Name: The Virdone Law Firm, PC

Hon Edmund M. Dane, J.S.C.

The following papers have been read on these motions:

Defendant's Order to Show Cause dated March 7, 2023

Plaintiff's Notice of Cross-Motion dated April 21, 2023

Defendant's Opposition & Reply dated May 5, 2023

PRELIMINARY STATEMENT

The Defendant moves by Order to Show Cause dated March 7, 2023 (Motion Sequence No.: 006) seeking an Order: (A) Granting an order compelling Plaintiff, T.P, to list the former marital residence located at XXXX, Elmont, New York for sale in accordance with the terms of the parties' Stipulation of Settlement dated October 21, 2022; (B) Directing the Plaintiff to permit Defendant access to the marital residence to retrieve Defendant's personal property and belongings in accordance with the terms of the parties' Stipulation of Settlement dated October 21, 2022; (C) Directing Plaintiff to pay any and all outstanding fees to Optimum in the current sum of $691.78; (D) Granting such other and further relief as the Court may deem just and proper.

The Plaintiff moves by Notice of Cross-Motion dated April 21 2023 (Motion Sequence No.: 007) seeking an Order: (a) Dismissing the Defendant's application and/or denying the relief requested by the Defendant's application in its entirety; and (b) Directing the Defendant to cooperate with the buy-out/refinance of the marital residence pursuant to the terms of the parties' Stipulation of Settlement; and (c) Directing the Defendant to reimburse the Plaintiff for fees incurred as a result of the delay in closing the refinance; and (d) Pursuant to DRL 237 and Section 130-1.1 of the Rules of the Chief Administrator of the Courts, awarding Plaintiff counsel fees in the sum of $10,000.00 representing fees incurred by the Plaintiff in defending against the Defendant's frivolous application, plus additional sums as may accrue during the pendency of this action for services rendered in connection with the within application; and (e) Pursuant to Section 130-1.1 of the Rules of the Chief Administrator of the Courts, directing the Defendant to pay sanctions for the filing of a frivolous application in the amount determined by this Honorable Court; and (f) Awarding counsel fees in the sum of $10,000.00 to the Plaintiff for defending against the Defendant's application; and (g) For such other and further relief which the Court may deem just and proper.

BACKGROUND

There are no unemancipated children of this marriage. The parties resolve the instant matrimonial action by way of a Stipulation of Settlement dated October 21, 2022 (hereinafter referred to as the "Stipulation").An Order Directing Submission of Findings of Fact, Conclusions of Law and Judgment of Divorce was signed by this Court on October 21, 2022. A proposed Judgment of Divorce was submitted by the Plaintiff's counsel on February 21, 2023. A proposed Counter Judgment of Divorce was submitted by the Defendant's counsel on February 22, 2023. The Judgment and Counter Judgment are currently pending review by the Matrimonial Clerk's Office.

THE PARTIES' CONTENTIONS

Defendant's Contentions:

The Defendant contends in sum and substance that Plaintiff was to, within 120 days from the execution of the Stipulation, secure a loan to buyout his interest in and to the marital residence - located at XXXX, Elmont, New York (hereinafter referred to as the "Elmont Residence") - for $173,500.00. He argues that this sum was due to him on February 18, 2023. He argues that on February 10, 2023, his counsel sent a letter to Plaintiff's counsel, inquiring as to a closing date for the refinance. He argues that the Plaintiff's counsel simply responded that a closing date was anticipated to be February 21, 2023. He avers that the Stipulation provides that if the Plaintiff is not able to close on a new loan within the 120 day time period, that the Elmont Residence is to be placed on the market for sale. He argues that his counsel sent an email on February 23, 2023, indicating that her time to close to obtain a new loan had expired, and that he provided information as to the broker he was choosing as the listing agent for the sale. He argues that in response, he received communication from counsel that the closing on the refinance was scheduled for February 21, 2023, but there was a "problem with underwriting". He argues that he then received notification that the Plaintiff would not be able to close on the refinance until March, but there were no details as to why it would not take place until March. He argues that this deprives him of funds that he was entitled to receive from the Elmont Residence. He seeks the return of his personal property, and that the Plaintiff has prevented his access to the Elmont Residence, despite the fact that his counsel has requested access. He argues that he attempted to work this out through counsel, to no avail, as the Plaintiff wanted to impose rules for his return. He argues that the Plaintiff was to take over the carrying charges attendant to the Elmont Residence upon his vacatur from the Elmont Residence, that he vacated the Elmonst Residence on October 30, 2022, and that there is now an Optimum bill due in the amount of $691.78 for which the Plaintiff should be responsible.

Plaintiff's Contentions:

The Plaintiff avers that the Stipulation provided that she buyout the Defendant's interest in the Elmont Residence within 120 days of the execution of the Stipulation. She argues that in November of 2022, she began reaching out to lenders to begin the refinancing process. She avers that by the end of January, 2023, she was pre-approved for a refinance with Better Mortgages or N.J. Lenders, and she thereupon choose N.J. Lenders to refinance. She avers that the loan application was processed on February 1, that the e-consent forms were completed on February 9, that the remaining forms and authorizations were completed on February 14, that she received an email on February 14 that her loan was pre-approved, that N.J. Lenders confirmed the loan was fully approved on February 27, that on March 3 the closing was scheduled for March 9, and that due to scheduling conflicts the earliest day closing could be scheduled for was March 9. She argues that her counsel advised the Defendant's counsel of the preliminary closing date and the reason for the delay. She avers that less than two weeks from when 120 days had elapsed, the refinance and closing was scheduled but the Defendant refused to sign off on the closing. She argues that between the time he filed his application and April 13, the Defendant made "demands" to move forward with the closing. She argues she complied with his demands, but he asked for more. She argues she was left without answers for weeks, there was a modification stipulation drafted, and she believed the Defendant would execute same. She argues he again - at that point - asked for more. She argues that she is now in jeopardy of losing her loan and must now pay $1,850 to keep the loan alive through May 10. She argues that the Defendant has nothing to gain by insisting on the sale. She argues that the forced sale delays receipt of his share of the equity and that he will receive less if the Elmont Residence is sold. With respect to his personal property, the Defendant previously ransacked all of his property beyond what was set forth therein. She avers that she has "always been available" for the Defendant to retrieve his remaining personalty but that she wanted to feel protected that the Defendant would only take what was in the Stipulation. She avers that the Defendant provides no proof from when the bill originated from, as all utilities were transferred out of his name when he vacated.

Defendant's Opposition & Reply:

The Defendant reiterates that the Plaintiff failed to timely refinance the current mortgage, failed to remove his name from the mortgage, and failed to pay him his share of the equitable distribution, in addition to refusing to allow him access to the Elmont Residence. He argues that the Plaintiff fails to provide a reasonable excuse for her failing to timely comply with the terms of the Stipulation. He argues that there is no proof appended to the Plaintiff's moving papers that she began submitting applications for a new loan in November of 2022 and there is no proof that she was pre-approved for a new loan by the end of January 2023. He argues that while the Plaintiff argues that she was pre-approved by the end of January, 2023, there is an email that the loan was pre-approved on February 14, 2023. He argues that the Plaintiff concedes that she was not fully approved until February 27, 2023. He argues that since she received a commitment letter on February 27, 2023, she was nowhere near scheduling a closing date, which is also contrary to her statement that the closing was scheduled for February 21, 2023. He questions how a closing could have been scheduled when there was no commitment letter. He argues that closing documents were sent to him after 5:00 p.m. on March 7, 2023, one business day prior to the closing date of March 9, 2023. He argues that no documentation is appended to the Plaintiff's moving papers to substantiate the $1,850.00 that she must pay to keep the loan viable. He denies ransacking the Elmont Residence. He argues that the Optimum bill is the result of equipment which was not returned. He argues that he paid his cable charges through November 22, 2022, and the remaining balance of $550.00 is for the remaining equipment.

DISCUSSION/ANALYS...