Dalia Genger, Plaintiff-Appellant, v. Arie Genger, Defendant-Respondent.

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Supreme Court, Appellate Division, First Department, New York.

Dalia Genger, Plaintiff-Appellant, v. Arie Genger, Defendant-Respondent.


Decided: February 22, 2011

Tom, J.P., Sweeny, Acosta, Renwick, Manzanet-Daniels, JJ. Yankwitt & McGuire, LLP, White Plains (Harold F. McGuire, Jr. of counsel), for appellant. Dobrish Zeif Gross, LLP, New York (Robert Z. Dobrish of counsel), for respondent.


Order, Supreme Court, New York County (Laura Drager, J.), entered November 6, 2009, which granted plaintiff's motion to compel production of documents pursuant to a stipulation of settlement of the parties' divorce action only to the extent of documents reflecting marital assets that were not listed on the marital balance sheet and were not the subject of the previous audit and ensuing arbitration and only upon plaintiff's furnishing a reasonable basis to believe such unlisted assets existed, and ordered the parties to execute a confidentiality agreement in connection with the production, unanimously modified, on the law, to grant the motion to compel without restriction or limitation, and otherwise affirmed, without costs.

While recognizing that, pursuant to the stipulation, plaintiff is entitled to further audits as to the completeness and accuracy of the marital assets and liabilities contained on the marital balance sheet as of January 31, 2002 and valued as of October 26, 2004, the court impermissibly restricted the scope of these audits, essentially rewriting the stipulation by imposing additional terms (see Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 N.Y.2d 173, 182 [1995] ).   The stipulation is patently unambiguous and clearly evinces the parties' intent (see Chimart Assoc. v. Paul, 66 N.Y.2d 570, 574 [1986] ).   It contains no restriction or limitation on the scope of the audits.   The court was not at liberty to alter or change any of the provisions of the stipulation without the consent of both parties (see Leffler v. Leffler, 50 A.D.2d 93, 95 [1975], affd 40 N.Y.2d 1036 [1976] ).

Defendant is bound by the contents of the stipulation (see Da Silva v. Musso, 53 N.Y.2d 543, 550 [1981] ).   His assertions are insufficient to rebut “the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties” (Merrick v. Merrick, 181 A.D.2d 503 [1992] [internal quotation marks and citation omitted] ).

We agree with the court that, under the circumstances, a confidentiality agreement in connection with the document production is warranted (see generally Mt. McKinley Ins. Co. v Corning Inc., 77 AD3d 453 [2010] ).   Moreover, plaintiff's counsel consented to the confidentiality agreement on the record in open court.