BARONE v. CLOPTON (2023)

Judgment, Supreme Court, New York County (Matthew F. Cooper, J.), entered March 9, 2021, to the extent appealed from as limited by the briefs, awarding plaintiff $76,000 for loans she made to defendant during the marriage, as memorialized by promissory notes, and $36,200 for third-party loans plaintiff incurred during the marriage, unanimously reversed, on the law, without costs, and those awards vacated.  Appeal from order, same court and Justice, entered on or about October 13, 2020, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The promissory notes, which provided that defendant would repay funds to plaintiff, were not enforceable in this proceeding because they were not acknowledged in accordance with Domestic Relations Law § 236(B)(3) (see Matisoff v. Dobi, 90 N.Y.2d 127, 132, 659 N.Y.S.2d 209, 681 N.E.2d 376 [1997];  Popowich v. Korman, 73 A.D.3d 515, 517, 900 N.Y.S.2d 297 [1st Dept. 2010]).  Plaintiff could not properly have been awarded the sums of those promissory notes or the third-party loans based on those sums having caused defendant's separate property business to appreciate in value because Supreme Court determined that plaintiff failed to establish a baseline value for the business, and thus, she could not sustain any claim to appreciation in the value of the business (see Domestic Relations Law §§ 236[B][1][d][3], [B][5][c];  Johnson v. Chapin, 12 N.Y.3d 461, 466, 881 N.Y.S.2d 373, 909 N.E.2d 66 [2009]).  Plaintiff did not otherwise demonstrate that she was entitled to any credit for the third-party loans incurred and fully paid during the marriage (see Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 421–422, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009]).