SCHARFMAN v. SCHARFMAN (2005)

In an action for a divorce and ancillary relief, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered May 27, 2004, as granted the defendant's motion to set the date of the commencement of the action, agreed by the parties to be June 1, 2001, as the valuation date for the parties' business entities and properties and denied that branch of her cross motion which was to set the date of trial as the valuation date.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion, and substituting therefor a provision denying the motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

At issue on this appeal is the proper valuation date for marital assets consisting of 85 operating entities which in turn own more than 100 residential rental real estate properties (hereinafter the Properties) located in the New York metropolitan area (see Domestic Relations Law § 236[B][4][b];  McSparron v. McSparron, 87 N.Y.2d 275, 287-288, 639 N.Y.S.2d 265, 662 N.E.2d 745).   The Supreme Court improvidently exercised its discretion in determining that the Properties be valued as of the date of commencement of the action.

In support of his motion to set the valuation date of the Properties as the date of commencement of this action, agreed by the parties to be June 1, 2001, the defendant failed to proffer evidence in support of his assertion that any change in the value of the Properties since that time was due solely to his efforts rather than to other factors, including market forces (see Barbuto v. Barbuto, 286 A.D.2d 741, 730 N.Y.S.2d 532;  Breese v. Breese, 256 A.D.2d 433, 681 N.Y.S.2d 606;  Marcus v. Marcus, 137 A.D.2d 131, 137, 525 N.Y.S.2d 238;  Wegman v. Wegman, 123 A.D.2d 220, 509 N.Y.S.2d 342;  cf. Grunfeld v. Grunfeld, 94 N.Y.2d 696, 708, 709 N.Y.S.2d 486, 731 N.E.2d 142;  Fox v. Fox, 309 A.D.2d 1056, 765 N.Y.S.2d 906;  Kirshenbaum v. Kirshenbaum, 203 A.D.2d 534, 535, 611 N.Y.S.2d 228).

Where there are factual disputes involving ownership and management of the Properties that need to be resolved by the court, the selection of a valuation date was premature (see Enzien v. Enzien, 149 A.D.2d 783, 539 N.Y.S.2d 576;  Stern v. Stern, 5 Misc.3d 1027(A), 2004 WL 2903605).

Our determination does not preclude either party from proffering evidence at trial of their efforts which affected the appreciation of the Properties (see Breese v. Breese, supra ).

The parties' remaining contentions are without merit.