ZAGARI v. ZAGARI (2005)

Plaintiff appeals and defendant cross-appeals from a judgment entered in this divorce action.   We conclude that Supreme Court's award of maintenance, which was determined following a thorough analysis of the finances of the parties, was not an abuse of discretion (see generally Anderson v. Anderson, 286 A.D.2d 967, 969, 731 N.Y.S.2d 108).   Nor did the court err in naming plaintiff as a fourth primary beneficiary of defendant's life insurance policy along with defendant's three daughters.   Contrary to plaintiff's contention, the 1992 agreement between the parties requiring defendant to “ designate [plaintiff] as primary beneficiary on all policies of life insurance insuring her life” does not require a contrary result.   Pursuant to the express terms of that agreement, plaintiff was entitled to be named as a primary beneficiary, not as the sole beneficiary, and we note that the court considered the fact that, under the agreement, plaintiff was entitled to the entire estate of defendant upon her death.   We reject the further contention of plaintiff that the court erred in construing the agreement, which was drafted by his attorney, against plaintiff (see generally 151 W. Assoc. v. Printsiples Fabric Corp., 61 N.Y.2d 732, 734, 472 N.Y.S.2d 909, 460 N.E.2d 1344;  Lewittes v. Blume, 13 A.D.3d 104, 105, 786 N.Y.S.2d 38), in limiting his rights to defendant's pension and early retirement incentive as well as defendant's “403(B) plan and TSA account.”   Those items were separately acquired by defendant during the marriage and, thus, under the terms of the agreement, were to remain her separate property.   Finally, the court did not abuse its discretion in awarding counsel fees to plaintiff in the amount of $3,000 (see generally DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: