Erin Alice Millender–Rubin, respondent, v. Adam L. Rubin, appellant. (2026)

Argued—June 2, 2026

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Kings County (Theresa M. Ciccotto, J.), dated December 16, 2025.  The order, insofar as appealed from, denied those branches of the defendant's motion which were for summary judgment making certain declarations in his favor with respect to the rights of the parties concerning the disposition of two cryopreserved embryos created by the parties during the marriage via assisted reproductive technology and granted that branch of the plaintiff's cross-motion which was, in effect, for summary judgment awarding her exclusive possession and use of the two cryopreserved embryos created by the parties during the marriage via assisted reproductive technology.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's cross-motion which was, in effect, for summary judgment awarding her exclusive possession and use of the two cryopreserved embryos created by the parties during the marriage via assisted reproductive technology, and substituting therefor a provision denying that branch of the cross-motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The parties were married in 2021 and soon thereafter began efforts to have a child through assisted reproductive technology, specifically by in vitro fertilization (hereinafter IVF), at NYU Langone Fertilization Center (hereinafter NYULFC).  The first IVF cycle occurred in October 2021 (hereinafter the October 2021 IVF cycle), which resulted in one viable embryo.  At the time of the October 2021 IVF procedure, the parties entered into an agreement with NYULFC to cryopreserve (freeze and store in liquid nitrogen) any excess embryos that resulted from the October 2021 IVF cycle and elected to cryopreserve the one embryo that resulted therefrom.  In November 2021, the parties participated in a second IVF cycle (hereinafter the November 2021 IVF cycle), resulting in two more viable embryos, which the parties again elected to cryopreserve.  In December 2022, the parties used one of the cryopreserved embryos, but it did not result in a pregnancy.  In March 2023, the parties engaged in a third IVF cycle, which apparently did not result in any viable embryos.

The parties' efforts towards pregnancy were unsuccessful, and in 2023, the plaintiff commenced this action for a divorce and ancillary relief.  The plaintiff sought, among other things, exclusive possession and use of the two cryopreserved embryos created by the parties during the marriage.  In a so-ordered stipulation dated August 12, 2024, the parties agreed that there were two embryos in dispute that had been created through IVF in 2021.  The stipulation did not specify from which IVF cycle or cycles the embryos had been created.

The defendant moved, inter alia, for summary judgment making certain declarations in his favor with respect to the rights of the parties concerning the disposition of the embryos.  In support of his motion, the defendant submitted, among other things, the embryo cryopreservation consent forms from the October 2021 IVF cycle (hereinafter the October 2021 agreement) and from the March 2023 IVF cycle (hereinafter the March 2023 agreement, and together with the October 2021 agreement, the agreements).  The defendant did not submit any agreement relating to the November 2021 IVF cycle.  The agreements were standardized forms provided by NYULFC to establish the use and disposition of any embryos that may be created during a particular IVF cycle.  The agreements recognized the possibility that “more good-quality embryos” could form during the IVF cycle than would be immediately used by the parties to attempt a pregnancy and provided for the cryopreservation of any excess embryos so that they could be thawed and transferred at some later time.  In each of the agreements, the parties consented to have any such excess embryos cryopreserved and stored for future use.  The agreements largely provided details regarding the storage by NYULFC of the embryos and the payment by the parties for storage of such embryos.  The agreements included a provision encouraging the parties to use the cryopreserved embryos within 10 years of the initial cryopreservation date to limit time in cryostorage, but they did not contain any expiration date.  As relevant to this appeal, the agreements included a section that acknowledged that new circumstances may arise while the embryos were frozen, some of which were particularly described and accounted for, including divorce or dissolution of the marriage.  In the October 2021 agreement, the parties agreed that in the event of divorce or dissolution of the marriage, the embryos would be donated for research purposes.  In the March 2023 agreement, the parties agreed that in the event of divorce or dissolution of the marriage, the embryos would be “transferred to the partner stipulated in the divorce or dissolution settlement or other binding agreement.”

In support of his motion, the defendant provided no evidence regarding which IVF cycle produced the embryos in dispute and he did not explain what relevance the March 2023 agreement had to the embryos, particularly in light of the parties' so-ordered stipulation that the dispute concerned two embryos created in 2021.  Nonetheless, the defendant relied upon the March 2023 agreement and its terms in contending that he was entitled to judgment as a matter of law.

The plaintiff opposed the motion and cross-moved, inter alia, in effect, for summary judgment awarding her exclusive possession and use of the embryos.  In an affidavit, the plaintiff averred that, consistent with the parties' so-ordered stipulation, there were two viable embryos in cryopreservation that were in dispute.  The plaintiff did not, however, identify which IVF cycle or cycles the embryos came from or submit any agreement relating to the embryos.  Relying on the terms of the March 2023 agreement submitted by the defendant, the plaintiff argued, among other things, that the parties' agreement required the Supreme Court to award ownership rights and dispositional control of the embryos to one of the parties.

In an order dated December 16, 2025, the Supreme Court, inter alia, denied those branches of the defendant's motion which were for summary judgment making certain declarations in his favor with respect to the rights of the parties concerning the disposition of the embryos and granted that branch of the plaintiff's cross-motion which was, in effect, for summary judgment awarding her exclusive possession and use of the embryos.  The court relied upon the March 2023 agreement, determined that the March 2023 agreement provided that the court was to decide which party should be awarded the embryos, and determined that the embryos should be awarded to the plaintiff.  The defendant appeals.

“[P]arties should be encouraged in advance, before embarking on IVF and cryopreservation, to think through possible contingencies and carefully specify their wishes in writing.  Explicit agreements avoid costly litigation in business transactions.  They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable.  Advance directives, subject to mutual change of mind that must be jointly expressed, both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision.  Written agreements also provide the certainty needed for effective operation of IVF programs” (Kass v. Kass, 91 N.Y.2d 554, 565).  Agreements between the parties concerning the creation and disposition of embryos “should generally be presumed valid and binding, and enforced in any dispute between [the parties]” (id.).  The complexities of cryopreservation “make it particularly important that courts seek to honor the parties' expressions of choice, made before disputes erupt, with the parties' over-all direction always uppermost in the analysis.  Knowing that advance agreements will be enforced underscores the seriousness and integrity of the consent process.  Advance agreements as to disposition would have little purpose if they were enforceable only in the event the parties continued to agree.  To the extent possible, it should be the progenitors—not the State and not the courts—who by their prior directive make this deeply personal life choice” (id. at 566).  “An embryo disposition agreement between intended parents with joint dispositional control of an embryo shall be binding,” provided certain circumstances, not at issue here, are met (Family Ct Act § 581–306).

There is no dispute that resolution of the question of disposition of the embryos should be controlled in the first instance by the agreements that the parties made with respect to the cryopreservation of the embryos.  Neither party, however, established from which IVF cycle or cycles the two embryos at issue derived, and neither party submitted the agreement providing for the cryopreservation of the embryos created in the November 2021 IVF cycle, which the record established would control disposition of one, if not both, of the embryos at issue.  The record established that one embryo was created and cryopreserved in October 2021, that two embryos were created and cryopreserved in November 2021, and that one of those three cryopreserved embryos was thawed and transferred in December 2022.  The record did not, however, establish which embryo was used in December 2022 and which embryos remain.  Each cryopreservation consent agreement was made in connection with a particular IVF cycle and provided for the cryopreservation, use, and disposition of any excess embryos resulting from that particular IVF cycle.  Since the embryos in dispute were created in 2021, any reliance on the March 2023 agreement is misplaced, as the March 2023 agreement was entered into in contemplation of embryos forming from the March 2023 IVF cycle, and no embryos apparently formed during that IVF cycle.  No language in the March 2023 agreement indicated an intent that it apply to previously cryopreserved embryos being stored from prior IVF cycles.  To the contrary, the plain language of the March 2023 agreement indicated that it controlled the cryopreservation of any excess embryos developed in the March 2023 IVF cycle.

A court is authorized to grant a motion for summary judgment only “if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b] ).  It is well settled that the proponent of a summary judgment motion carries the burden to “make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact,” and that the failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324;  see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).  Here, neither party established entitlement to judgment as a matter of law, as neither party established the agreement that was made with respect to the embryos in dispute.  There are triable issues of fact as to whether the embryos in dispute are from the November 2021 IVF cycle or a combination of the October 2021 IVF cycle and the November 2021 IVF cycle, and neither party submitted the agreement that was made with respect to the embryos formed during the November 2021 IVF cycle, which, on this record, would appear to apply to one, if not both, of the embryos in dispute.

Contrary to the assertion of our dissenting colleague, we do not inappropriately raise these issues sua sponte.  The moving party's obligation to demonstrate entitlement to judgment as a matter of law exists irrespective of the opposition (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853).  “To grant summary judgment it must clearly appear that no material and triable issue of fact is presented.  This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is arguable;  issue-finding, rather than issue-determination, is the key to the procedure” (Sillman v Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 [citations and internal quotation marks omitted];  see Vega v. Restani Constr.  Corp., 18 NY3d 499, 505).  Although parties are generally free to chart their own course in litigation of a civil dispute, “[s]uch freedom, however, must give way to certain practical constraints,” and “[s]ummary judgment is inappropriate in any case where there are material issues of fact in dispute or where more than one conclusion may be drawn from the established facts” (Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039, 1043).  Where the parties have failed to eliminate material factual issues, summary judgment should be denied, even where the parties have asked the court to award judgment as a matter of law based upon their submissions (see id.).

Here, the parties' failure to establish from which IVF cycle the disputed embryos derived and to submit an agreement that provides for the cryopreservation and disposition of the embryos formed in the November 2021 IVF cycle precludes the award of judgment as a matter of law.  Significantly, while the parties have relied upon the March 2023 agreement in fashioning their arguments, they did not stipulate that the March 2023 agreement controlled the dispute.  Further, by its terms, the March 2023 agreement did not pertain to previously cryopreserved embryos, and the parties have stipulated that the embryos in dispute were formed in 2021.  Thus, the evidence submitted on the defendant's motion and the plaintiff's cross-motion established that the March 2023 agreement did not control the disposition of the embryos in dispute.  “On this record, we must decline the parties' invitation to award judgment as a matter of law” (id.).

Contrary to the assertion of our dissenting colleague, the October 2021 agreement and the agreement relating to the November 2021 IVF cycle are not improperly raised for the first time on appeal.  The parties ask this Court to resolve the issue of the rights of the parties concerning the disposition of the embryos formed and cryopreserved in 2021.  The record established, and it has not been disputed, that the parties engaged in two separate IVF cycles—one in October 2021 and another in November 2021.  The defendant submitted the October 2021 agreement in support of his summary judgment motion, making it part of the record that is being reviewed on appeal, and not, as our dissenting colleague posits, something improperly raised years into the litigation.  By its terms, the October 2021 agreement provided for the cryopreservation of any excess embryos formed during the October 2021 IVF cycle.  Similarly, by its terms, the March 2023 agreement submitted by the defendant provides for the cryopreservation of any excess embryos that could have formed during the March 2023 IVF cycle.  The failure of the moving parties to submit an agreement that provided for the cryopreservation and disposition of the embryos in dispute, which undisputedly were formed in 2021, is a failure to establish entitlement to judgment as a matter of law.  Contrary to the approach taken by our dissenting colleague, a court faced with such a failure should deny summary judgment rather than resolve material factual issues on motions seeking summary judgment (see id.;  Sillman v Twentieth Century–Fox Film Corp., 3 N.Y.2d at 404).  Our dissenting colleague relies upon the principle that a subsequent contract regarding the same subject matter will supercede a prior contract, but this principle applies “only with regard to that same subject matter” (Pope Contr., Inc. v. New York City Hous. Auth., 214 AD3d 519, 520).  The different IVF cycles and the potential embryos formed in each are not the same subject matter.  As noted, there is no language in the agreements indicating an intent that the terms thereof apply to previously cryopreserved embryos.  Nor is there language indicating an intent that the terms thereof apply to future IVF cycles.  Rather, the agreements authorized the cryopreservation of any excess “good quality” embryos formed during the specific IVF cycle undertaken and provided for the administration of and payment for the cryopreservation of those particular embryos, as well as the parties' direction regarding the disposition of those specific embryos.  To the extent that our dissenting colleague suggests that the agreement relating to the November 2021 IVF cycle would be identical to the other agreements, that conclusion requires this Court to speculate and is not a foundation for the award of judgment as a matter of law on a motion for summary judgment.

The defendant's contention that the Supreme Court was biased against him is improperly raised for the first time in his reply papers and based upon matter dehors the record.  In light of our determination, we do not reach the parties' remaining contentions.

Accordingly, although the Supreme Court properly denied those branches of the defendant's motion which were for summary judgment making certain declarations in his favor with respect to the rights of the parties concerning the disposition of the embryos, the Supreme Court also should have denied that branch of the plaintiff's cross-motion which was, in effect, for summary judgment awarding her exclusive possession and use of the embryos.

BRATHWAITE NELSON, J.P., HOM and OTTLEY, JJ., concur.

WARHIT, J., dissents, and votes to reverse the order insofar as appealed from, on the law, grant those branches of the defendant's motion which were for summary judgment declaring (1) that the subject cryopreserved embryos are not subject to equitable distribution, (2) that no use, transfer, or disposition of the embryos may occur absent mutual written consent of the parties, and (3) that the defendant lawfully revoked his consent to any use of the embryos, and deny that branch of the plaintiff's cross-motion which was, in effect, for summary judgment awarding her exclusive possession and use of the embryos, with the following memorandum:

I respectfully disagree with the determination of my colleagues in the majority that triable issues of fact exist regarding which agreement governed the disposition of the cryopreserved embryos created during the November 2021 in vitro fertilization (hereinafter IVF) cycle and from which IVF cycle the subject embryos derived.  My colleagues in the majority inappropriately raise these issues sua sponte.  Both parties throughout the litigation have taken the same position, that the most recent embryo cryopreservation consent agreement they signed in 2023 controlled the disposition of the subject embryos.  Therefore, I would decide this appeal based solely on the arguments made by the parties and apply the embryo cryopreservation consent agreement they signed in 2023 in analyzing the disposition of the embryos.

In any event, the embryo cryopreservation consent agreements entered into by the parties in 2021 and 2023 are identical and contain the same operative terms.  Pursuant to those terms, either party is allowed to withdraw consent to the use of the embryos at any time, and the parties do not dispute that the defendant withdrew his consent to the use of the embryos for implantation.  As the Court of Appeals has instructed, agreements between parties participating in IVF “should generally be presumed valid and binding, and enforced in any dispute between them” (Kass v. Kass, 91 N.Y.2d 554, 565).  Consequently, since the defendant withdrew his consent in accordance with the terms of the parties' embryo cryopreservation consent agreements, I would award summary judgment in favor of the defendant.  For these reasons, I respectfully dissent.

I. Factual and Procedural Background

The plaintiff and the defendant were married in September 2021.  During the marriage, the parties participated in IVF at NYU Langone Fertility Center (hereinafter NYULFC) to assist them in having a child.  They participated in IVF cycles in October 2021, November 2021, and March 2023, which resulted in the creation of several embryos that were cryopreserved.  In connection with the IVF program, the parties executed two “Embryo Cryopreservation” consent agreements in October 2021 (hereinafter the 2021 agreement) and March 2023 (hereinafter the 2023 agreement), respectively, setting forth the parties' “directions regarding the use and disposition of embryos obtained during an assisted reproductive technology (ART) cycle at [NYULFC].”

The 2021 agreement and the 2023 agreement, which are identical standardized forms provided by NYULFC, required the parties to execute further consent forms before the embryos may be thawed and transferred for implantation.  Specifically, the agreements provided as follows:  “F. When I am/we are ready to have the embryos transferred to the uterus of the patient, recipient or carrier, I/we must sign additional NYULFC consents to authorize the thawing of my/our embryos to yield an appropriate number for transfer based on the patient's age and clinical history.  I/We also understand that I/we must notify my/our NYULFC physician about each request for a Frozen Embryo Transfer cycle so that I/we can discuss a treatment plan regarding the selection of embryos for transfer.”

Additionally, the agreements provided that where two partners are signing the form, all decisions about the disposition of the embryos are to be made jointly by both parties.  However, the agreements also allowed either party to withdraw their consent to the use of the embryos.  Specifically, the agreements provided as follows:  “L. I/We understand that I/we can change my/our decisions about the disposition of the embryos at any time but that I am/we are required to provide NYULFC with written notice AND notice by telephone of the change(s).”

The agreements also contemplated the disposition of the embryos upon the occurrence of specific contingencies, including death, divorce, or incapacity.  In the event of a divorce, the agreements provided the parties with three options from which to choose:  “4. In the event of our divorce, dissolution of marriage, legal separation, or termination of domestic partnership, we wish the embryos to be:

a. _/_ transferred to the partner stipulated in the divorce or dissolution settlement or other binding agreement with that partner being financially responsible for cryostorage fees.

b. _/_ donated for research purposes, subject to our later execution of the ‘Release Form:  Disposal of Cryopreserved Embryos.’

c. _/_ thawed and discarded without being used.”

In the 2021 agreement, the parties selected option (b), “donated for research purposes.”  In the 2023 agreement, the parties selected option (a), providing for the embryos to be “transferred to the partner stipulated in the divorce or dissolution settlement or other binding agreement.”

Finally, the agreements contained a default disposition provision stating as follows:  “I/We understand and agree that in the event that none of my/our elected choices are available, as determined by NYULFC, that NYULFC is authorized, without further notice to me/us, to thaw and discard the embryos.”

In or around 2023, the parties' relationship deteriorated.  In June 2023, the defendant went to NYULFC and revoked his consent to the implantation of the embryos.  He later emailed a representative at NYULFC confirming his revocation of consent, and the NYULFC representative acknowledged the defendant's withdrawal of his consent to the implantation of the embryos.

In November 2023, the plaintiff commenced this action for a divorce and ancillary relief, seeking exclusive possession and use of the cryopreserved embryos.

The defendant subsequently moved, inter alia, for summary judgment declaring (1) that the embryos are not subject to equitable distribution, (2) that no use, transfer, or disposition of the embryos may occur absent mutual written consent of the parties, and (3) that he lawfully revoked his consent to any use of the embryos.  In support of his motion, the defendant argued that the 2023 agreement unambiguously provided that no embryo could be used without the consent of both parties and that he had revoked his consent to the use of the embryos.  The defendant asserted that the plaintiff's action for exclusive possession and use of the embryos directly contravened the parties' express written agreement.  The plaintiff opposed the defendant's motion and cross-moved, among other things, in effect, for summary judgment awarding her exclusive possession and use of the embryos.  The plaintiff argued, inter alia, that pursuant to the 2023 agreement, “the [p]arties agreed for the [c]ourt to have the last word regarding disposition of the [e]mbryos in the event of the divorce” and that, upon balancing the parties' respective interests, the Supreme Court should award her possession of the embryos.

In an order dated December 16, 2025, the Supreme Court denied those branches of the defendant's motion and granted that branch of the plaintiff's cross-motion.  While the court determined that the 2023 agreement was a valid and binding contract, it relied solely upon the 2023 agreement's divorce provision, determining that because “the contract does not indicate any specific party ․ to be designated the power to obtain ownership of and/or control over the embryos ․, the decision of who gets the remaining embryos is left to the determination of this [c]ourt.”  The court then applied a balancing-of-interest analysis and determined that “the [p]laintiff's sense of urgency in having children due to her advancing age” outweighed “any interest [the][d]efendant may have.”

II. Analysis

In Kass v. Kass (91 N.Y.2d at 554), the Court of Appeals applied familiar principles of contract interpretation to an agreement between parties participating in IVF. Importantly, the Court began its analysis by noting that “[a]greements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them” (id. at 565).  The Court highlighted “that courts seek to honor the parties' expressions of choice, made before disputes erupt,” noting that “[a]dvance agreements as to disposition would have little purpose if they were enforceable only in the event the parties continued to agree” (id. at 566).  The Court emphasized that, “[t]o the extent possible, it should be the progenitors—not the State and not the courts—who by their prior directive make this deeply personal life choice” (id.).  Applying these standards, the Court rejected the plaintiff's request for sole possession of the cryopreserved “pre-zygotes” to achieve pregnancy, concluding that the consent forms entered into between the parties prior to their divorce, “unequivocally manifest their mutual intention that in the present circumstances the pre-zygotes be donated for research to the IVF program” (id. at 567).

In the present case, although the Supreme Court purported to rely upon the principles articulated in Kass, it selectively and improperly relied upon the divorce provision of the 2023 agreement, ignored other directly applicable provisions, and erroneously resorted to a balancing-of-interest analysis where none was warranted.

To begin, although the parties did not formally stipulate that the 2023 agreement governed the instant dispute, the parties have consistently taken the position during the pendency of this action that the 2023 agreement controlled the disposition of their embryos.  Both parties relied upon the 2023 agreement in the Supreme Court, in their appellate briefs, and during oral argument before this Court.  Further, both parties agree that the 2023 agreement is enforceable pursuant to Family Court Act § 581–306, which sets forth certain requirements for embryo disposition agreements.  Neither party, at any point, has argued that the 2021 agreement controlled or asserted that they executed an additional agreement in 2021 in connection with the November 2021 IVF cycle.  It is only now, years into the litigation, that my colleagues in the majority, sua sponte, and improperly, place the 2021 agreement at issue and speculate about a potential and hypothetical third contract to find an issue of fact where none otherwise exists.

“The Court of Appeals has cautioned the judiciary that ‘[w]e are not in the business of blindsiding litigants, who expect us to decide [matters] on rationales advanced by the parties, not arguments their adversaries never made’ ” (Wells Fargo Bank, N.A. v. St. Louis, 229 AD3d 116, 122, quoting Misicki v. Caradonna, 12 NY3d 511, 519).  I find that the approach taken by my colleagues in the majority violates this principle and that it is inappropriate for us to decide this appeal “on a distinct ground that we winkled out wholly on our own” (Misicki v. Caradonna, 12 NY3d at 519;  see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 159;  Kaufman v. Kaufman, 189 AD3d 31, 69;  Green Tree Servicing, LLC v. Molini, 171 AD3d 880, 882).

Importantly, the agreements state that they set forth the parties' directions regarding the use and disposition of embryos obtained during an ART cycle at NYULFC.  There is simply no language in the agreements specifying to which ART cycle they apply or that excluded embryos created during an earlier cycle.  Rather, the parties justifiably treated the most recent agreement as controlling the disposition of all of the embryos, which is consistent with the general rule that “a subsequent contract regarding the same matter will supersede the prior contract” (Hyuncheol Hwang v Mirae Asset Sec. [USA] Inc., 165 AD3d 413, 413 [internal quotation marks omitted];  see Pope Contr., Inc. v. New York City Hous. Auth., 214 AD3d 519, 520).  Contrary to the assertion of my colleagues in the majority, the agreements at issue do, in fact, relate to the same subject matter, namely, the disposition of the parties' embryos.  Notably, nothing in the record supports the conclusion that the parties intended to treat embryos differently from one another based on the timing of their creation.  Therefore, consistent with the arguments made by the parties, I would apply the 2023 agreement in resolving the parties' dispute concerning the disposition of their embryos.

Turning to the merits, as the Court of Appeals instructed in Kass, resolution of the instant dispute is governed by well-settled principles of contract interpretation.  Those principles include that “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v. Philles Records, 98 N.Y.2d 562, 569;  see South Shore Eye Care, LLP v Lane, 242 AD3d 792, 793–794).  “Where the terms of an agreement are unambiguous, interpretation is a question of law for the court” (G3–Purves St., LLC v. Thomson Purves, LLC, 101 AD3d 37, 40;  see IndyMac Venture, LLC v. Amus, 164 AD3d 883, 885).

Here, pursuant to the plain terms of the 2023 agreement, either party was allowed to withdraw their consent to the use of the embryos.  Paragraph L permitted the parties to “change [their] decisions about the disposition of the embryos at any time.”  Moreover, paragraph F required both parties to sign additional consent forms before the embryos may be thawed and used for implantation.  These provisions necessarily contemplated that either party could decide not to proceed after entering into the 2023 agreement.  It is undisputed that the defendant withdrew his consent to the use of the embryos approximately four months prior to the commencement of this divorce action.  Therefore, the embryos could not be used for any purpose by either party (see Finkelstein v. Finkelstein, 162 AD3d 401, 403–404).

Contrary to the plaintiff's contention and the Supreme Court's determination, the divorce provision of the 2023 agreement did not supersede paragraph L or authorize the court to decide the disposition of the embryos.  The divorce provision stated that “[i]n the event of [the parties'] divorce, dissolution of marriage, legal separation, or termination of a domestic partnership, we wish the embryos to be ․ transferred to the partner stipulated in the divorce or dissolution settlement or other binding agreement” (emphasis added).  Thus, the divorce provision specifically contemplated that the parties might reach a mutual agreement, that is, a stipulation as to the disposition of the embryos.  However, the divorce provision would only be triggered upon the issuance of a judgment of divorce or written separation agreement wherein the parties stipulated who was to have possession and use of the embryos.  That did not occur.  The parties never entered into a separation agreement or into a stipulation regarding the disposition of the embryos.  Thus, the divorce provision was not applicable and did not authorize the court to decide the issue.

In Kass v. Kass (91 N.Y.2d at 568), the plaintiff similarly argued that a divorce provision in the consent forms therein allowed the Supreme Court to decide the disposition of the pre-zygotes in the event of the parties' divorce.  The provision at issue therein stated, “[i]n the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction” (id.).  The Court of Appeals rejected the plaintiff's interpretation of the divorce provision in Kass, finding that it “ignore[d] the direction that ownership of the pre-zygotes ‘must be determined in a property settlement’ ” (id.).  The plaintiff's interpretation of the divorce provision at issue herein is similarly inconsistent with the plain language of the 2023 agreement.

Significantly, the 2023 agreement also contained a default disposition provision, which applied in the event that the parties could not mutually agree on a disposition, including in the event of a divorce.  The default disposition provision provided as follows:  “I/We understand and agree that in the event that none of my/our elected choices are available, as determined by NYULFC, that NYULFC is authorized, without further notice to me/us, to thaw and discard the embryos.”  Simply put, the 2023 agreement did not contain any language allowing the plaintiff to unilaterally obtain exclusive possession and use of the embryos for implantation.

Accordingly, based on the foregoing, I would reverse the order insofar as appealed from, grant those branches of the defendant's motion which were for summary judgment declaring (1) that the subject cryopreserved embryos are not subject to equitable distribution, (2) that no use, transfer, or disposition of the embryos may occur absent mutual written consent of the parties, and (3) that the defendant lawfully revoked his consent to any use of the embryos, and deny that branch of the plaintiff's cross-motion which was, in effect, for summary judgment awarding her exclusive possession and use of the embryos.

ENTER:

Darrell M. Joseph

Clerk of the Court