A.N., Plaintiff, v. D.N., Defendant. (2025)

Upon the foregoing papers, in this action by plaintiff A.N. (plaintiff) against defendant D.N. (defendant) for recission or reformation of an agreement and breach of contract, defendant moves, under motion sequence number one (NYSCEF Doc No. 14), for an order: (1) pursuant to CPLR 3211 (a) (1), (5) and (7), dismissing plaintiff's complaint dated March 11, 2024 with prejudice; (2) awarding her sanctions, pursuant to 22 NYCRR 130-1.1, including her reasonable attorney's fees incurred in defending against this action; and (3) granting her such other and further relief as the court may deem just and proper.

Facts and Procedural Background

Plaintiff and defendant were married in a religious ceremony on December 20, 1997, in Kingston, St. Andrew, Jamaica, West Indies. Two children were born of the marriage: T.N., who was born in February 1998 and is now 27 years old; and M.N., who was born in June 2003 and is now 21 years old. M.N. currently attends college at SUNY Purchase and resides there during the academic year.

Plaintiff and defendant separated in 2013. On April 23, 2015, defendant, as the plaintiff therein, commenced an action for divorce in this court (the divorce action). In the divorce action, defendant was represented by pro bono counsel Hughes Hubbard & Reed, LLP, and plaintiff was represented by David Callendar, Esq. During the divorce action, which was protracted, the parties exchanged documents through discovery, and both parties filed and responded to various motions. On January 18, 2017, a trial regarding equitable distribution of the marital assets commenced, and following four days of trial, the parties settled the issues of custody, visitation, child support, equitable distribution, and other ancillary issues by a written Stipulation of Settlement, dated July 10, 2017 (the Stipulation of Settlement), which was signed by both parties, initialed on every page, and duly acknowledged (NYSCEF Doc No. 18).

The Stipulation of Settlement, in its preamble, stated that "the Parties have had the opportunity to be fully and independently advised of their respective legal rights, remedies, and obligations arising out of the marriage relationship by counsel of their own choosing, and each having, in addition, made independent inquiry with respect to same." It further stated that "the Parties each warrant and represent to the other that they fully understand the terms of this Stipulation, and each believes the same to be fair, just, and reasonable, and in their respective individual best interests."

At the time of the execution of the Stipulation of Settlement, T.N and M.N were both unemancipated. Article VII of the Stipulation of Settlement, entitled "Custody and Visitation," awarded sole legal and physical custody of the children to defendant and gave visitation to plaintiff. Article VIII of the Stipulation of Settlement, entitled "Child Support," provided that plaintiff was to pay defendant statutory child support in the sum of $701.25 per month, and that this amount was the presumptive basic child support obligation determined by the Child Support Standards Act (the CSSA). It set forth that this amount of child support was calculated upon applying the CSSA formula based upon plaintiff's adjusted gross income of $34,175.31, and defendant's adjusted gross income of $8,432.29. The parties acknowledged, at paragraph 6 of Article VIII of the Stipulation of Settlement that the amount of child support agreed upon conformed with the basic child support obligation as mandated by the CSSA.

Paragraph 8 of Article VIII of the Stipulation of Settlement provided that upon the emancipation of the first child, the amount of child support was to be reduced to $476.85 per month, subject to cost-of-living adjustments. Paragraph 10 (b) of Article VIII of the Stipulation of Settlement provided that a child was deemed to be emancipated upon attaining the age of 21 years, provided, however, that if such child was a full-time undergraduate student, the age of emancipation would be the earlier of the child's completion of her undergraduate college study or the completion of the semester in which the child attains the age of 22.

Article IX of the Stipulation of Settlement, entitled "Ancillary Expenses of the Children," provided that if defendant incurred any ancillary expenses for the children, such as unreimbursed medical expenses for them or expenses related to each child's post-secondary education at any institution of higher learning offering two- or four-year degree-granting programs (including costs attributable to tuition, room and board, university fees, and books), plaintiff was required to pay his pro rata share of said expenses. Paragraph 5 (e) of Article VIII of the Stipulation of Settlement calculated plaintiff's pro rata share to be 79%.

In Article XI of the Stipulation of Settlement, defendant waived any claim for spousal support or maintenance.

Article XIII of the Stipulation of Settlement, entitled "Equitable Distribution," provided that the parties agreed to divide equally that portion of plaintiff's pension administered by the United Nations Joint Staff Pension Fund (UNJSPF), which accrued during the marriage, in accordance with the terms of a Qualified Domestic Relations Order (QDRO). In accordance with the calculations set forth in the QDRO, plaintiff's share of the lump sum distribution was $129,701.76, and defendant's share of the lump sum distribution was $62,449.02. The balance of the UNJSPF pension was to be paid as monthly distributions, and in accordance with the calculations set forth in the QDRO, plaintiff's share of the monthly distributions was $1,616.55 per month, and defendant's share of the monthly distributions was $778.35 per month.

Paragraph 5 of Article XIII of the Stipulation of Settlement provided that the UNJSPF pension entitlement also included an annual distribution on account of each of the children under the age of 21 (the Child Benefit), and that the parties agreed that defendant shall receive the full value of the Child Benefit, payable by the UNJSPF directly to her, in accordance with the terms of the QDRO.

Paragraph 7 of Article XIII of the Stipulation of Settlement provided that the parties owned two undeveloped lots located in Marion Oaks, Florida, and that they agreed that each party shall receive sole title to one of the lots. Paragraph 8 of Article XIII of the Stipulation of Settlement provided that defendant was to execute a quitclaim deed conveying to plaintiff her interest in property located in Jamaica.

In paragraph 9 of Article XIII of the Stipulation of Settlement, the parties acknowledged that title to the marital residence located in Laurelton, New York, was held solely in plaintiff's name. It set forth that defendant would continue to have exclusive access to the marital residence for a period of 90 days from the date that defendant received the lump sum distribution of the UNJSPF pension, provided, however, that defendant would not be required to vacate the marital residence until she had received three of the monthly distributions of the pension and three monthly payments of child support from plaintiff in the amount of $701.25 per month, as set forth in Article VIII. It further provided that defendant was to allow plaintiff's designated real estate agent, Cecil Thomas, of Victory Real Estate Corp., access to the marital residence in order to show it to prospective buyers, provided that notice of such showing shall be given by the agent to defendant at least 24 hours in advance. It also provided that defendant agreed to cooperate with plaintiff's efforts to sell the marital residence, and that plaintiff would be solely responsible for taxes and other liabilities associated with the marital residence. On July 10, 2017, an inquest was held before the court and the parties were fully allocuted on the record (NYSCEF Doc No. 19). At the inquest, plaintiff swore affirmatively, under oath, that it was his signature and initials on the Stipulation of Settlement, that he read and understood the Stipulation of Settlement before signing it, that his lawyer answered any questions he may have had to his satisfaction, that he understood it was a full and final agreement, that he understood he could not come back and change his mind, that no one was forcing or coercing him into the Stipulation of Settlement and he was entering it on his own free will, that he agreed to abide by the terms and conditions of the Stipulation of Settlement, that he was not under the influence of any drugs or alcohol impairing his ability to understand the Stipulation of Settlement, and that he was satisfied by the services provided to him by his attorney, Mr. Callendar (id. at 6, lines 6-25; at 7, lines 1-20). The plaintiff also testified under oath as to the same questions at allocution.

The court granted a Judgment of Divorce on the grounds of an irretrievable breakdown in the marital relationship for a period in excess of six months, pursuant to Domestic Relations Law § 170 (7), and the terms and conditions of the Stipulation of Settlement were incorporated by reference into the Judgment of Divorce and survived and did not merge into the judgment (id. at 13, lines 11-17). On September 20, 2017, this court signed the Judgment of Divorce, which was entered in the Kings County Clerk's records on September 27, 2017 (NYSCEF Doc No. 20). A QDRO was also signed by the court on September 20, 2017 (NYSCEF Doc No. 23).

Shortly after the Judgment of Divorce was entered, plaintiff began paying defendant $701.25 in child support pursuant to the Stipulation of Settlement. Defendant received her first monthly pension distribution in November 2017, and her lump sum pension distribution on December 7, 2017 (NYSCEF Doc No. 22).

Plaintiff's child support obligation was reduced to $476.85 in March 2020. Defendant claims that plaintiff failed to contribute his 79% pro rata share of T.N.'s or M.N.'s college tuition expenses since the execution of the Stipulation of Settlement except for one $3,000 check that he deposited into T.N.'s account with the memo line "Tuition." Defendant further claims that beginning in 2021, plaintiff began to consistently fail to make his child support payments, or sent her only partial payments, and he began to accrue significant arrears.

On March 3, 2023, defendant filed an order to show cause in the earlier divorce action seeking to hold plaintiff in contempt of court for willful refusal to comply with the Judgment of Divorce, in that he failed: (1) to pay child support, including arrears, in the amount of $476.85 per month and, as of that time, owed her a total of $5,245.35; (2) to contribute his pro rata share of 79% for the children's unreimbursed medical expenses and, as of that time, owed her $2,323.58; (3) to contribute 79% toward T.N.'s post-secondary educational expenses, due between 2016 and 2020, and, as of that time, owed her $20,961.66; and (4) to contribute 79% toward M.N's post-secondary educational expenses and, as of that time, owed her $14,960.48. Defendant, in her order to show cause, sought, in the alternative, an order awarding her a money judgment against plaintiff in the sum of $43,491.07, consisting of: (1) $5,245.35, representing the amount of plaintiff's child support arrears; (2) $2,323.58, representing the amount plaintiff owed her toward their children's uncovered health insurance expenses; and (3) $35,922.14, representing the amount plaintiff owed her toward their two children's post-secondary educational expenses (NYSCEF Doc No. 24).

On April 11, 2023, the court appointed Steven London, Esq., as the attorney for plaintiff, pursuant to Judiciary Law § 35 (8) (b), to represent him for the limited purpose of defending against defendant's contempt motion in the post judgment proceeding in the divorce action (NYSCEF Doc No. 40). Defendant is represented by Fried, Frank, Harris, Shriver & Jacobson LLP, originally by Alison Goldman, Esq. and Michael Abrams-Dyer, Esq., and currently, pursuant to a notice of appearance dated November 21, 2024 (NYSCEF Doc No. 49), by Gina S. Boone, Esq.

On July 21, 2023, plaintiff, represented by Mr. London, cross-moved in the divorce action for an order modifying the child support and ancillary expense obligations for M.N. (the only remaining unemancipated child), which were contained in the Judgment of Divorce, signed on September 20, 2017, and the Stipulation of Settlement, dated July 10, 2017, due to a substantial change in circumstances as a result of his alleged medical incapacity to work, a greater than 15% change in his income, and the fact that more than three years had elapsed since the entry of the Judgment of Divorce (NYSCEF Doc No. 25).

By an Amended Special Referee Order dated January 29, 2024, the court appointed Referee Cara Ruda to hear and report with recommendations with respect to the issues of calculation of arrears, contempt, defense to contempt, downward modification, and money judgment of arrears (NYSCEF Doc No. 44). On February 26, 2024, a trial of these issues began before Referee Ruda, but immediately after plaintiff's counsel, Mr. London, delivered his opening statement, the trial was stayed because Mr. London claimed that he would be filing an application to this court due to information he had just learned the day before about plaintiff's former counsel in the divorce action, David Callender, who was disbarred on May 11, 2022 (Matter of Callender, 205 AD3d 137, 139 [2d Dept 2022]). Plaintiff was advised by Referee Ruda that in order to modify or vacate the underlying Stipulation of Settlement, he would have to file a plenary action.¹ Consequently, after counsel sought clarification of the court as to whether commencing such a proceeding was within the scope of his appointment pursuant to Judiciary Law 35(8), plaintiff filed the instant plenary action on March 11, 2024 (NYSCEF Doc No. 1).

Plaintiff's complaint in the instant plenary action contains two causes of action. Plaintiff's first cause of action is a claim for rescission or reformation of child support and add-on provisions based on the ineffective assistance of his former counsel, David Callender, in representing him with respect to the Stipulation of Settlement. Plaintiff alleges that the Stipulation of Settlement is unconscionable as interpreted and sought to be enforced by defendant in that the combined child support and add-on obligations were incapable of fulfillment based upon his income. Plaintiff further alleges that the inequity and unconscionability of the child support provisions were such that any attorney not neglecting the matter, and properly communicating with his client, would have seen and advised his client that given his income, the add-on provisions would be likely to reduce his disposable income below the poverty level, and advise his client not to sign, and make objection to said provisions on behalf of his client.

Plaintiff also alleges that the Stipulation of Settlement is silent as to whether a substantial child benefit from the plaintiff's pension plan was to be credited toward the child support obligation. Plaintiff asserts that the child benefit from his pension plan was approximately $300 per child until each child's 21st birthday which is sent directly to defendant. Plaintiff claims that if the child benefit payments had been applied toward the child support obligation, the monthly payment of child support taken from his earnings would have been approximately $100 dollars per month. Plaintiff also claims that the Stipulation of Settlement provides that he is responsible for 79% of all add-ons expenses which defendant might pay, including college tuition, which any reasonable person would see could not be sustained on his income. Plaintiff claims that but for David Callender's neglect and ineffective assistance, he would not have entered into the Stipulation of Settlement as written.

Plaintiff's second cause of action is a claim for breach of contract based on defendant remaining in the marital residence until January 22, 2019, in violation of paragraph 9 of Article XIII of the Stipulation of Settlement. Plaintiff alleges that defendant had received the lump-sum distribution of the pension on December 7, 2017, and had received three monthly payments of child support in the amount of $701.25 from him by March 2018, but refused to vacate the marital residence. Plaintiff alleges that as a result of defendant's refusal to vacate the marital residence, he was required to pay rent for other lodgings, and he was delayed and frustrated in his ability to timely sell the marital residence, accruing further taxes and liabilities, including the increasing liability for missed mortgage payments. Plaintiff further alleges that defendant's breach of the Stipulation of Settlement also resulted in his inability to pay off certain debts, which could have been paid if the marital residence had been timely sold. Plaintiff claims that as a result of defendant's breach of paragraph 9 of Article XIII of the Stipulation of Settlement, he was damaged in an amount which exceeds $20,000.

On April 24, 2024, defendant filed her instant motion in this plenary action (NYSCEF Doc No. 14). On July 31, 2024, Justice Richard J. Montelione, to whom this plenary action was originally assigned, transferred it to this court (NYSCEF Doc No. 33). Oral argument before this court was held on September 24, 2024 (NYSCEF Doc No. 48).

Plaintiff's First Cause of Action

The Parties' Contentions

Defendant contends that plaintiff's first cause of action for rescission or reformation is time-barred by the six-year statute of limitations since it accrued on July 10, 2017, when the Stipulation of Settlement was executed by her and plaintiff, and plaintiff filed this plenary action on March 11, 2024. Defendant further contends that plaintiff's first cause of action fails to state a cause of action.

Plaintiff contends that his first cause of action for rescission or reformation is not time-barred because it arises from and directly relates to defendant's claims against him for contempt and a money judgment brought in the related post judgment motion by defendant in the divorce action. Plaintiff further contends that his first cause of action states a claim for rescission or reformation on the basis that the Stipulation of Settlement is unconscionable and that since Mr. Callendar, the attorney who represented him in the divorce action, was subsequently disbarred, he had ineffective assistance of counsel with respect to his entry into the Stipulation of Settlement.

Discussion

As to plaintiff's first cause of action to rescind or reform the Stipulation of Settlement based on his claim that it is unconscionable or that there was an ineffective assistance of counsel, there is a six-year statute of limitations for a rescission or reformation cause of action (see CPLR 213 [1]; Walter v Starbird-Veltidi, 78 AD3d 820, 821 [2d Dept 2010]; Colyer v Colyer, 26 AD3d 303, 304 [1st Dept 2006]; Spataro v Spataro, 268 AD2d 467, 468 [2d Dept 2000]; Riley v Riley, 179 AD2d 750, 750 [2d Dept 1992]; Bowes & Co. of NY v American Druggists' Ins. Co., 96 AD2d 1023, 1024 [1st Dept 1983], affd 61 NY2d 750 [1984]). This claim accrued on July 10, 2017, when the Stipulation of Settlement was executed by the parties. Therefore, the six-year statute of limitations expired on July 10, 2023. Since plaintiff filed this plenary action on March 11, 2024, the first cause of action for rescission or reformation of the Stipulation of Settlement is time-barred and must be dismissed pursuant to CPLR 3211 (a) (5).

Plaintiff's argument that his first cause of action in this plenary action seeking rescission and reformation of the Stipulation of Settlement is not time-barred by the six-year statute of limitations because it arises from and directly relates to defendant's claims against him for contempt and a money judgment brought in the related post judgment motion by defendant in the divorce action, is rejected. CPLR 203 (d) provides that a defense or counterclaim is not barred by the statute of limitations if it "arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends." However, while CPLR 203 (d) permits a defendant to assert an otherwise untimely claim which arose out of the same transactions alleged in the complaint, he or she may do so "only as a shield for recoupment purposes," and this section "do[es] not permit the defendant to obtain affirmative relief" (DeMille v DeMille, 5 AD3d 428, 429 [2d Dept 2004]; see also Getzel Schiff & Pesce, LLP v Shtayner, 233 AD3d 758, 760 [2d Dept 2024]; Balanoff v Doscher, 140 AD3d 995, 996 [2d Dept 2016]; Carlson v Zimmerman, 63 AD3d 772, 774 [2d Dept 2009]; Rosenblatt v Ackoff-Ortega, 300 AD2d 137, 138 [1st Dept 2002]; Rothschild v Indus. Test Equip. Co., Inc., 203 AD2d 271, 272 [2d Dept 1994]; Brody v Brody, 62 AD3d 928, 929 [2d Dept 2009]). Here, plaintiff is seeking the affirmative relief of rescission and reformation, rendering CPLR 203 (d) inapplicable.

The court notes that plaintiff also relies upon Bloomfield v Bloomfield (97 NY2d 188, 192-193 [2001]) and Iuliano v Iuliano (30 AD3d 737, 738 [3d Dept 2006]), where it was held that pursuant to CPLR 203 (d), a defendant's claim for rescission, challenging the validity of a prenuptial agreement, was not time-barred by the six-year statute of limitations. However, plaintiff's reliance upon these cases is misplaced since they involved prenuptial agreements. Domestic Relations Law § 250, which became effective on July 3, 2007, after these cases were decided, now governs the statute of limitations with respect to prenuptial agreements. Domestic Relations Law § 250 (1) provides that the statute of limitations for commencing an action or proceeding or for claiming a defense that arises from a prenuptial agreement "entered into . . . prior to a marriage . . . or during the marriage, but prior to the service of process in a matrimonial action or proceeding, shall be three years," and Domestic Relations Law § 250 (2) tolls the statute of limitations until "process has been served in such matrimonial action or proceeding." Domestic Relations Law § 250 (3) specifically provides that "[t]he provisions of this section shall not apply to a separation agreement or an agreement made during the pendency of a matrimonial action or in settlement thereof." Here, plaintiff seeks to rescind a Stipulation of Settlement made during the pendency of the divorce action and in settlement thereof, where the parties were fully allocuted on the record, and which was incorporated into a Judgment of Divorce, as opposed to a prenuptial agreement which was agreed to by the parties out of court prior to the commencement of a divorce action.

Plaintiff's first cause of action also fails to state a viable cause of action. " 'Marital settlement agreements are judicially favored and are not to be easily set aside' " (Barone v Barone, 199 AD3d 875, 876 [2d Dept 2021], quoting Glover v Glover, 137 AD3d 745, 746 [2d Dept 2016]). " 'A stipulation of settlement entered into by parties to a divorce proceeding that is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability' " (Barone, 199 AD3d at 876, quoting Cohen v Cohen, 170 AD3d 948, 949 [2d Dept 2019]; see also Sanfilippo v Sanfilippo, 137 AD3d 773, 774 [2d Dept 2016]). " ' "An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense" ' " (Forman v Forman, 211 AD3d 698, 699 [2d Dept 2022], quoting Barone, 199 AD3d at 876, quoting Ku v Huey Min Lee, 151 AD3d 1040, 1041 [2d Dept 2017]; see also Sanfilippo, 137 AD3d at 774; Morad v Morad, 27 AD3d 626, 627 [2d Dept 2006]). " 'An agreement, however, is not unconscionable "merely because, in retrospect, some of its provisions were improvident or one-sided" ' " (Forman, 211 AD3d at 700, quoting Ku, 151 AD3d at 1041, quoting O'Lear v O'Lear, 235 AD2d 466, 466 [2d Dept 1997]; see also Sanfilippo, 137 AD3d at 774; Label v Label, 70 AD3d 898, 899 [2d Dept 2010]). Plaintiff, as the party seeking to vacate the Stipulation of Settlement, has the burden of showing that its terms were unconscionable (see Karen E. v Yoram E., 144 AD3d 1081, 1081 [2d Dept 2016]; O'Hanlon v O'Hanlon, 114 AD3d 915, 916 [2d Dept 2014]; Campione v Alberti, 98 AD3d 706, 706-707 [2d Dept 2012]; Cervera v Bressler, 85 AD3d 839, 841 [2d Dept 2011]; Sweeney v Sweeney, 71 AD3d 989, 992 [2d Dept 2010]; Rubin v Rubin, 33 AD3d 983, 985 [2d Dept 2006]; Chambers v McIntyre, 5 AD3d 344, 345 [2d Dept 2004]). Plaintiff has failed to meet this burden.

While plaintiff argues that the child support and add-on provisions were unconscionable, the terms of the Stipulation of Settlement were not so unfair as to shock the conscience and confound the judgment of any person of common sense (see Forman, 211 AD3d at 700). The amount of child support set forth in the Stipulation of Settlement was based upon the CSSA formula and used the parties' incomes in the amounts represented by them in the Stipulation of Settlement. In addition, plaintiff received a $129,701.76 lump sum payment from his UNJSPF pension, as well as a monthly distribution from his pension.

The Child Benefit was separate from child support pursuant to the terms of the Stipulation of Settlement. The fact that plaintiff obtained this distribution for the children as a benefit of his UNJSPF pension plan does not render the Stipulation of Settlement unconscionable. The Child Benefit was only paid up until the children reached the age of 21 and has now already been fully paid for the children's benefit.

While plaintiff contends that the provisions for educational expenses and other ancillary expenses contain absolutely no limitation and seem to be within the sole power of defendant to incur at will, defendant remains responsible for her 21% pro rata share, and, therefore, had no incentive to incur unreasonably high tuition costs. In fact, Purchase College, the college chosen by defendant, is a public state college, which is part of the State University of New York (SUNY) system. Plaintiff has also not alleged any reason that defendant would have the children incur unreasonable or unnecessary unreimbursed medical expenses.

Furthermore, plaintiff warranted and represented to defendant in the Stipulation of Settlement that he fully understood its terms, and believed them "to be fair, just, and reasonable, and in [his] best interests." Plaintiff further represented, in the Stipulation of Settlement, that he was fully and independently advised of his "legal rights, remedies, and obligations arising out of the marriage relationship by counsel of [his] own choosing," and that he also "made independent inquiry with respect to same." Thus, plaintiff has failed to state a viable claim that the Stipulation of Settlement should be rescinded or reformed based on unconscionability.

Plaintiff has also failed to state a viable claim that the Stipulation of Settlement should be set aside based on ineffective assistance of counsel. " '[I]n the context of civil litigation, an attorney's errors or omissions are binding on the client and, absent extraordinary circumstances, a claim of ineffective assistance of counsel will not be entertained' " (Karen E., 144 AD3d at 1082, quoting Matter of Saren v Palma, 263 AD2d 544, 545 [2d Dept 1999]; see also Matter of Rosado v Rosado, 136 AD3d 927, 928 [2d Dept 2016]; McVeigh v Curry, 74 AD3d 915, 916 [2d Dept 2010]; Salvatore v Salvatore, 68 AD3d 966, 967 [2d Dept 2009]; Galil, LLC v Scott, 61 AD3d 820, 820 [2d Dept 2009]). Plaintiff has failed to allege the existence of any extraordinary circumstances in his representation that would warrant setting aside the Stipulation of Settlement on the basis of ineffective assistance of counsel (see Karen E., 144 AD3d at 1082; Matter of Rosado, 136 AD3d at 928; McVeigh, 74 AD3d at 916; Salvatore, 68 AD3d at 967; Matter of Saren, 263 AD2d at 545).

Plaintiff merely points to disciplinary proceedings against Mr. Callendar with respect to other clients in other unrelated cases (NYSCEF Doc No. 1). Plaintiff does not show that Mr. Callendar did not effectively represent him in this divorce action. The Stipulation of Settlement was negotiated between counsel (NYSCEF Doc No. 21), and plaintiff agreed to its terms. Plaintiff was also fully allocuted by the court on the record and he specifically stated that he read and understood the Stipulation of Settlement before signing it, that his lawyer answered any questions that he may have had to his satisfaction, and that he was satisfied with the legal services provided to him by his attorney.

Moreover, by accepting the benefits of the Stipulation of Settlement for a period of more than six years, plaintiff ratified it (see Forman, 211 AD3d at 700; Korngold v Korngold, 26 AD3d 358, 359 [2d Dept 2006], lv dismissed 7 NY3d 861 [2006]). " 'A party who "accepts the benefits provided under a[n] agreement for any considerable period of time" is deemed to have ratified the agreement and thus, "relinquishes the right to challenge the agreement" ' " (Forman, 211 AD3d at 700, quoting Rio v Rio, 110 AD3d 1051, 1054 [2d Dept 2013], quoting Wasserman v Wasserman, 217 AD2d 544, 544 [2d Dept 1995]; see also Sabowitz v Sabowitz, 123 AD3d 794, 795 [2d Dept 2014]; Cotton v Cotton, 76 AD3d 1041, 1042 [2d Dept 2010]; Brennan v Brennan, 305 AD2d 524, 525 [2d Dept 2003]; Torsiello v Torsiello, 188 AD2d 523, 524 [2d Dept 1992]). Since plaintiff did not move to rescind or reform the Stipulation of Settlement for over six years after its execution, during which time he acquiesced in the Stipulation of Settlement and accepted its benefits, including obtaining a divorce, title to one of the Florida lots, a relinquishment of defendant's interest in the Jamaica property, a waiver of maintenance by defendant, a waiver of defendant's marital interest in the marital residence, and a division of his UNJSPF pension benefits. Therefore, it must be concluded that plaintiff ratified the terms of the Stipulation of Settlement and he cannot challenge it at this late date (see Beutel v Beutel, 55 NY2d 957, 958 [1982]; Forman, 211 AD3d at 700; Riley, 179 AD2d at 750; Cordero v Cordero, 135 AD2d 483, 484 [2d Dept 1987], appeal dismissed 72 NY2d 952 [1988]; Glaser v Glaser, 127 AD2d 741, 741 [2d Dept 1987]). Consequently, in addition to being barred by the applicable statute of limitations, dismissal of plaintiff's first cause of action is required due to its failure to state a viable cause of action (see CPLR 3211 [a] [7]). The court notes, in passing, that plaintiff still has the remedy of asserting an inability to pay and to seek a downward modification in the divorce action or as a defense to a contempt application.

Plaintiff's Second Cause of Action

The Parties' Contentions

Plaintiff's second cause of action for breach of contract seeks damages for defendant's alleged failure to vacate the marital premises in violation of the settlement agreement. Defendant asserts that when she and plaintiff divorced, she and their two daughters were living in the marital residence. Defendant states that pursuant to the Stipulation of Settlement, while she continued to live in the marital residence with the children until all financial and support conditions of Stipulation of Settlement were met, she allowed plaintiff's real estate agent, Cecil Thomas, access to the marital residence nearly every weekend for a year in order to show the home to potential buyers, and in every way cooperated with efforts to sell the marital residence. Defendant attests that plaintiff never asked her to leave the marital residence with the children, and he did not oppose them living there in order for their youngest daughter, M.N., to continue to attend her high school until a buyer could be found. Defendant attests that she never refused to vacate the marital residence, and that plaintiff never complained of having to pay for other lodging or being unable to pay off other debts. Defendant claims that the fact that she was living at the marital residence in no way hindered plaintiff's ability to sell it.

Defendant explains that on September 28, 2018, she received a letter from plaintiff's real estate lawyer, Fred M. Ainsley, Esq., stating that the marital residence had been sold and the deadline for the transfer of title was October 15, 2018 (NYSCEF Doc No. 27). Defendant sets forth that she then immediately found an apartment in Brooklyn for her, M.N., and T.N., to move into, and signed a lease on October 14, 2018, which began on November 1, 2018 (NYSCEF Doc No. 28). Defendant states that when she called Mr. Ainsley to ask a question, he informed her that he was no longer representing plaintiff, that the letter was not sent by him, and that he asked her to send him a copy of the letter and she did. Defendant then proceeded to move out of the marital residence with the children. Defendant states that she believes that plaintiff, rather than selling the marital residence in October 2018, continued to live there for a year after she and the children left, and first sold it in November 2019 to a real estate developer (NYSCEF Doc No. 29). Defendant states that Cecil Thomas, the real estate agent that plaintiff had been working with to sell the marital residence, later called her and told her that plaintiff had backed out of a deal to sell the marital residence to the buyer that Mr. Thomas had lined up in the fall of 2018.

Defendant contends that plaintiff's second cause of action for breach of contract must be dismissed as untimely pursuant to the six-year statute of limitations for breach of contract claims. Defendant asserts that plaintiff, in his complaint, alleges that she did not comply with paragraph 9 of Article XIII of the Stipulation of Settlement because she "refused to vacate" the marital residence in March 2018. Defendant notes, however, that pursuant to paragraph 9 of Article XIII, she was to continue to have exclusive access to the marital residence for a period of 90 days after she received the lump sum distribution of the pension, provided that she was not required to vacate the marital residence until she received three monthly distributions from the pension and three payments of child support.

Defendant states that she received the lump sum distribution of the pension on December 7, 2017, thereby giving her exclusive access to the marital residence until March 7, 2018. Defendant sets forth that she received her first monthly pension distribution on November 30, 2017, which continued to be paid to her on the last day of each subsequent month thereafter, and, therefore, had received the first three months of monthly distributions of the UNJSPF pension by January 31, 2018 (NYSCEF Doc No. 22). Defendant notes that plaintiff alleges, in paragraph 37 of the complaint, that she had received three monthly payments of child support of $701.25 from him by March 2018 (NYSCEF Doc No. 1). Defendant asserts that pursuant to paragraph 7 of Article VIII of the Stipulation of Settlement, plaintiff was required to make the child support payments on the first day of each month, and, therefore, she received three monthly payments of child support from plaintiff by March 1, 2018. Defendant states that she was not required to vacate the marital residence, pursuant to paragraph 9 of Article XIII until the later of January 31, 2018, March 1, 2018, and March 7, 2018, which is March 7, 2018, the date that she received the lump sum distribution of the UNJSPF pension. Defendant contends that the statute of limitations, therefore, accrued on March 7, 2018, for plaintiff's second cause of action for breach of contract and expired on March 7, 2024. Defendant argues that since plaintiff commenced this action on March 11, 2024, plaintiff's second cause of action for breach of contract is untimely and must be dismissed as time barred.

Defendant further contends that plaintiff's second cause of action fails to state a claim because he fails to adequately allege facts that she breached her contractual obligations under the Stipulation of Settlement or that he sustained actual and specific damages resulting from an alleged breach of contract. Defendant asserts that while plaintiff claims that she refused to vacate the marital residence in March 2018, he made no effort to request or force her to vacate the marital residence until she received a letter from his real estate attorney advising her that the marital residence had been sold and that the deadline for transfer of title was October 15, 2018. Defendant states that at that point, she immediately sought other housing and moved out of the marital residence shortly thereafter. Defendant maintains that plaintiff allowed her to remain in the marital residence with their two daughters until she and the children moved into another residence in November 2018.

Defendant notes that plaintiff did not sell the marital residence until November 2019. Defendant contends that plaintiff's delay and frustration in selling the marital residence was not a result of her residing there since she accommodated plaintiff's real estate agent in showing the marital residence to prospective buyers. Defendant points out that an initial buyer was not realized until October 2018, and defendant signed a lease for her current apartment on October 14, 2018. Defendant attests that the lease shows that she did not remain in the marital residence until January 22, 2019, as plaintiff alleges in paragraph 39 of his complaint. Defendant asserts that any alleged damages claimed to be incurred by plaintiff in paragraph 41 of his complaint for further taxes and liabilities, including liability for missed mortgaged payments, were entirely due to his own difficulty in selling the marital residence. Defendant points out that plaintiff continued to live in the marital residence until he sold it to a real estate developer in November 2019, a whole year after she vacated it.

Defendant further points to the fact that the marital residence had been the subject of foreclosure proceedings since 2015, and, therefore, there was no increasing liability for missed mortgage payments nor the ability for plaintiff to take the proceeds of a short sale and apply it to certain other debts if the marital residence been timely sold. Defendant argues that plaintiff's allegations of $20,000 in damages are entirely fabricated, and at best, entirely speculative, and such speculative damages are insufficient to sustain his second cause of action for breach of contract.

Plaintiff, in opposition, contends that it cannot be assumed that he timely made the third child support payment on the first of the month, and, therefore, he may not have actually made it on March 1, 2018. Plaintiff argues that in the event that he did not timely pay it, his claim for breach of contract would not have accrued on March 7, 2018. Plaintiff also contends that the structure of the Stipulation of Settlement did not envision requiring defendant to move the very day that all of the conditions were met, but, rather, within a reasonable time after March 2018. Plaintiff argues that there is an issue of fact as to when he communicated his desire for defendant to vacate the marital residence and, therefore, when defendant breached paragraph 9 of Article XIII of the Stipulation of Settlement. Plaintiff asserts that if he asked defendant to vacate the marital residence at any time after March 11, 2018, then this action is within the statute of limitations.

Plaintiff further argues that there remains the question of whether defendant vacated the marital residence on October 14, 2018, the day that she signed the lease or January 2019, as alleged in his complaint, and if defendant had not vacated the marital residence by October 15, 2018, the statute of limitations would not have expired until October 15, 2024, and she is responsible for any damages flowing from her breach of contract. Plaintiff contends that liberally construing his complaint, he has stated a cause of action for breach of contract in his second cause of action.

Discussion

There is a six-year statute of limitations for breach of a Stipulation of Settlement (see CPLR 213 [1]; Lobacz v Lobacz, 72 AD3d 653, 655 [2d Dept 2010]). Paragraph 9 of Article XIII set forth that defendant would continue to have exclusive access to the marital residence for a period of 90 days from the date that she received the lump sum distribution of the UNJSPF pension, provided, however, that she would not be required to vacate the marital residence until she had received three of the monthly distributions of the pension and three monthly payments of child support from plaintiff in the amount of $701.25 per month, as provided in Article VIII. Paragraph 7 of Article VIII specifically provided that "Husband shall be responsible for making the necessary arrangements so that such child support payments shall be received by Wife on the first day of each calendar month." The historical record of the pension disbursements (NYSCEF Doc No. 22) shows that defendant received the lump sum payment on December 7, 2017, as alleged in plaintiff's complaint. This gave defendant up to March 7, 2018, to remain in the marital residence, provided that, by that time, she had received three of the monthly distributions of the UNJSPF pension and three monthly payments of child support from plaintiff in the amount of $701.25 per month. Defendant received three of the monthly distributions of the UNJSPF pension by January 31, 2018. Plaintiff's complaint alleges that defendant had received three monthly payments of child support in the amount of $701.25 by March 2018, but thereafter refused to vacate the marital residence. Since the Stipulation of Settlement required plaintiff to make his child support payments on the first of each month, plaintiff's claim for a breach of this provision accrued on March 7, 2018, and expired on March 7, 2024. Since plaintiff filed this action on March 11, 2024, his second cause of action for breach of contract is untimely.

Plaintiff's argument that it is possible that he did not timely make the child support payments on March 1, 2018, and that this would extend the statute of limitations for his claim, is unavailing. Plaintiff was required by the express terms of paragraph 7 of Article VIII of the Stipulation of Settlement to make the child support payments on the first of each month, and plaintiff does not allege in his complaint that he did not timely make his child support payments. Furthermore, these payment conditions were inserted into the Stipulation of Settlement for defendant's benefit to ensure that she would have the funds in which to move to another residence.

Plaintiff's further argument, in an attempt to bring his claim within the statute of limitations period, that it was implied that defendant would have a reasonable time to vacate which would be a period longer than 90 days, is also rejected. This paragraph of the Stipulation of Settlement designating a specific time of 90 days, upon the payment conditions being met, is clear and unambiguous. This 90-day time period elapsed on March 7, 2018, and the payment conditions were met on or prior to March 7, 2018, over six years before plaintiff filed this action.

Plaintiff also argues that the time that the breach arose is dependent on when he asked defendant to leave, and asserts that this may have been after March 7, 2018, and closer to January 22, 2018, when he claims that defendant first vacated the marital residence. This argument is without merit. The statute of limitations begins to run when a cause of action accrues (see CPLR 203 [a]), that is, "when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court" (Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765, 770 [2012], quoting Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]; see also Fairlane Fin. Corp. v Scipione, 174 AD3d 577, 577-578 [2d Dept 2019]; County of Suffolk v Suburban Hous. Dev. & Research, Inc., 160 AD3d 607, 609 [2d Dept 2018]). Generally, "a breach of contract cause of action accrues at the time of the breach" (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402 [1993]; see also Fairlane Fin. Corp., 174 AD3d at 578; County of Suffolk, 160 AD3d at 609).

Since plaintiff's claim is for breach of contract due to defendant's failure to vacate the marital residence, plaintiff's second cause of action accrued when he possessed a legal right to demand that defendant vacate the marital residence (see Fairlane Fin. Corp., 174 AD3d at 578). In other words, the statute of limitations is triggered when the party has the right to demand vacatur, not when he or she actually makes the demand (id.). Plaintiff had the right to demand that defendant vacate the marital residence on March 7, 2018, and thus, plaintiff's second cause of action accrued at that time. Therefore, plaintiff's second cause of action is time-barred and must be dismissed (see CPLR 3211 [a] [5]).

Importantly, notwithstanding the statute of limitations issue, plaintiff's second cause of action also fails to state a viable claim upon which relief may be granted. " 'The essential elements of a breach of contract cause of action are "the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach" ' " (Reznick v Bluegreen Resorts Mgt., Inc., 154 AD3d 891, 893 [2d Dept 2017], quoting Canzona v Atanasio, 118 AD3d 837, 838 [2d Dept 2014], quoting Dee v Rakower, 112 AD3d 204, 208-209 [2d Dept 2013]).

A "plaintiff cannot prevail on a breach of contract theory unless he [or she] sustained actual damages as a natural and probable consequence of such breach" (Rakylar v Washington Mut. Bank, 51 AD3d 995, 996 [2d Dept 2008]; see also Standard Fed. Bank v Healy, 7 AD3d 610, 612 [2d Dept 2004]). Here, plaintiff's allegations are insufficient and too speculative to show that he could have sustained any damages due to her failure to timely vacate the marital residence. Plaintiff does not dispute that he was able to show the marital residence to prospective buyers while defendant resided there in accordance with paragraph 9 of Article XIII of the Stipulation of Settlement.

Plaintiff acquiesced in defendant's continued occupancy of the marital residence after March 2018, and did not request that she vacate it until the letter dated September 24, 2018 (NYSCEF Doc No. 27). At that point, defendant entered into a lease for her current apartment, as shown by the documentary evidence  ² of a lease signed by defendant on October 14, 2018, which provided for an occupancy date of November 1, 2018 (NYSCEF Doc No. 28). Plaintiff does not allege that he ever expressed to defendant that he wanted to reside in the marital residence. Rather, as set forth in paragraph 9 of Article XIII of the Stipulation of Settlement, plaintiff intended to sell the marital residence. Moreover, plaintiff does not allege how defendant prevented the timely sale of the marital residence by not vacating it since it is not alleged that she prevented the marital residence from being shown or that he had a prospective buyer prior to September 24, 2018, or that defendant's occupancy was the reason that a sale to a prospective buyer in October 2018 did not take place.

While plaintiff's complaint alleges that defendant did not vacate the marital residence until January 2019 (which is only two months after defendant claims to have vacated), he supports this by a mere notebook entry dated Tuesday, January 15, with a line that reads: "Queens got keys" (NYSCEF Doc No. 46). Plaintiff, in an affidavit, states that this shows that he went to Queens to pick up the keys to the marital residence from defendant on January 15, 2019 (NYSCEF Doc No. 37).

While plaintiff's allegation that defendant did not vacate the marital residence until January 15, 2019 is contrary to defendant's lease, in any event, the fact remains that plaintiff did not sell the marital residence until November 15, 2019, as shown by a deed dated November 15, 2019 (NYSCEF Doc No. 29), a year after defendant's lease became effective, and 10 months after plaintiff alleges that defendant vacated the marital residence. Thus, plaintiff's claim that defendant caused the delay in the sale of the marital residence and frustrated his ability to timely sell the marital residence is unsupported and contrary to the undisputed facts. Plaintiff's claim that this delay caused him to accrue further liability for missed mortgage payments is belied by the fact that the marital residence had been in mortgage foreclosure proceedings since 2015 (NYSCEF Doc No. 26). Plaintiff, in paragraph 9 of Article XIII of the Stipulation of Settlement, agreed to be solely responsible for taxes and other liabilities associated with the marital residence until its sale. Plaintiff has not alleged any facts which support his damages claim, without which he cannot sustain his second cause of action for breach of contract (see Rakylar, 51 AD3d at 996). Thus, plaintiff's second cause of action must also be dismissed pursuant to CPLR 3211 (a) (7).

Sanctions

The Parties' Contentions

Defendant contends that sanctions should be awarded against plaintiff and his counsel, pursuant to 22 NYCRR 130-1.1, on the basis that plaintiff engaged in frivolous conduct by filing this plenary action after the statute of limitations on both his claims in his complaint already expired. Defendant argues that plaintiff did so in a blatant attempt to delay her legitimate post judgment motion seeking an order of contempt in her divorce action. Defendant asserts that plaintiff had years to raise any concerns regarding the alleged unconscionability of the Stipulation of Settlement and ineffective assistance of counsel but failed to do so until the eve of trial of her contempt motion before the Referee. Defendant further asserts that plaintiff's causes of action in this plenary action have no merit or basis in fact or law.

Plaintiff contends that he has not engaged in any frivolous conduct. Plaintiff argues that almost all the delay caused in bringing this plenary action and getting it before the court is directly attributable to the actions of defendant and/or her counsel. Plaintiff claims that this action has a good faith basis in law and fact, that there are no knowing misrepresentations of fact, and it was not brought primarily to delay the post judgment proceeding or to harass defendant. Plaintiff asserts that this action was brought for the primary purpose of protecting him from a threat of imprisonment due to defendant's contempt motion in the divorce action. Plaintiff notes that this action was brought in a very compressed time frame at the direction of the Referee in order to get the subject issues properly before the court. Plaintiff states, however, that defendant misrepresented the nature of this action on the RJI so that it wound up being assigned to a different Justice and had to be transferred to this court, which caused delay in this action.

Discussion

Pursuant to 22 NYCRR 130-1.1 (a), the court has the discretion to award a party "costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct" as defined in 22 NYCRR 130-1.1 (c). 22 NYCRR 130-1.1 (b) provides that the court "may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both."

22 NYCRR 130-1.1 (c) defines frivolous conduct as conduct which is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law"; "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another"; or "asserts material factual statements that are false." The movant "seeking the imposition of a sanction or an award of an attorney's fee pursuant to 22 NYCRR 130-1.1 (c) has the burden of demonstrating that the conduct of the opposing party was frivolous within the meaning of the rule, or that the action or proceeding was commenced or continued in bad faith" (Matter of Miller v Miller, 96 AD3d 943, 944 [2d Dept 2012]; see also Brin v Shady, 179 AD3d 760, 763 [2d Dept 2020]; Matter of Lebron v Lebron, 101 AD3d 1009, 1010-1011 [2d Dept 2012]; Maybaum v Maybaum, 89 AD3d 692, 697 [2d Dept 2011]).

While defendant argues that plaintiff has engaged in frivolous conduct on the basis that plaintiff's claims in this action are "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" and were "undertaken primarily to delay or prolong the resolution of the litigation" in the divorce action, the court does not find that defendant has sustained her burden of demonstrating that plaintiff's conduct was frivolous within the meaning of 22 NYCRR 130-1.1, or that this plenary action was commenced in bad faith.

Notably, defendant is represented by pro bono counsel and has not been charged legal fees. Plaintiff is represented by assigned counsel, who is attempting to defend plaintiff in the divorce action against contempt and has not commenced this plenary action in bad faith, but in an attempt to comply with the Referee's direction that in order to modify or vacate the underlying Stipulation of Settlement, he would have to file a plenary action.

While the court understands defendant's frustration in defending against plaintiff's claims in this action, it finds that plaintiff's conduct does not rise to the level of frivolous conduct within the meaning of 22 NYCRR 130-1.1 (c). Consequently, an award of sanctions, pursuant to 22 NYCRR 130-1.1, is inappropriate and must be denied (see generally Matter of Miller, 96 AD3d at 944-945 [2d Dept 2012]).

Conclusion

Accordingly, defendant's motion, under motion sequence number one, is granted insofar as she seeks an order dismissing plaintiff's complaint and is denied insofar as she seeks an order awarding her sanctions, pursuant to 22 NYCRR 130-1.1.

Any issue raised and not addressed in this decision and order is denied.

Counsel shall contact the referee by way of e-mail to schedule the continuation of the hearing no later than Monday, March 17, 2025.

This constitutes the decision and order of the court.

ENTER:

HON. JEFFREY S. SUNSHINE

J. S. C.

FOOTNOTES

1.   It is well established by the Second Department that parties who desire to vacate a settlement agreement that was incorporated but not merged into the judgment of divorce must do so through a plenary action. (See Alton v. Alton, 83 AD.3d 972, 973 [2d Dept 2011]).

2.   "A valid lease qualifies as documentary evidence within the intendment of CPLR 3211 (a) (1)" (Sunset Café, Inc. v Mett's Surf & Sports Corp., 103 AD3d 707, 709 [2d Dept 2013]).

Jeffrey S. Sunshine, J.