DEBORAH DRAKE PLAINTIFF APPELLANT RESPONDENT v. RICHARD MUNDRICK DEFENDANT RESPONDENT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

DEBORAH DRAKE, PLAINTIFF–APPELLANT–RESPONDENT, v. RICHARD MUNDRICK, DEFENDANT–RESPONDENT–APPELLANT.

CA 15–01022

Decided: November 18, 2016

PRESENT:  CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ. MAUREEN A. PINEAU, ROCHESTER, FOR PLAINTIFF–APPELLANT–RESPONDENT. ALLEN & O'BRIEN, ROCHESTER (STUART L. LEVISON OF COUNSEL), FOR DEFENDANT–RESPONDENT–APPELLANT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum:  On September 12, 2011, plaintiff commenced this action for equitable distribution following the issuance of an amended foreign judgment of divorce.  Before the nonjury trial commenced, Supreme Court informed the parties that the court would use the date of commencement of the foreign action of divorce, i.e., May 1, 2007, as the date for valuation of the marital property.  We agree with defendant that the court erred in using the 2007 date instead of the 2011 date as the valuation date.

Domestic Relations Law § 236(B)(4)(b) provides that, “[a]s soon as practicable after a matrimonial action has been commenced, the court shall set the date or dates the parties shall use for the valuation of each asset.  The valuation date or dates may be anytime from the date of commencement of the action to the date of trial” (emphasis added).  Both the action for dissolution of the marriage in 2007 and this action “to obtain ․ distribution of marital property following a foreign judgment of divorce” are included in the statutory section entitled “[m]atrimonial actions” (§ 236[B][2][a] ).  Nevertheless, we conclude that the date of commencement of the foreign action could not serve as the valuation date for equitable distribution of the marital property because the foreign action for divorce was not “an action in which equitable distribution [was] available,” and the foreign court in this case thus lacked jurisdiction over any of the parties' marital assets (Anglin v. Anglin, 80 N.Y.2d 553, 557;  see Sullivan v. Sullivan, 201 A.D.2d 417, 417;  see also Matter of Nicit v. Nicit, 217 A.D.2d 1006, 1006, appeal dismissed and lv. denied 86 N.Y.2d 883, rearg. denied 87 N.Y.2d 918, cert denied 517 U.S. 1120).  As counsel for defendant conceded at oral argument, a new trial on equitable distribution is required where, as here, we have determined that the court used an incorrect valuation date.

Based on our resolution of the issue concerning the proper valuation date, we do not address the parties' remaining contentions, including defendant's contention that the court erred in admitting, as a business record, a summary benefit statement that had no “independent business function” (R & I Elecs. v. Neuman, 81 A.D.2d 832, 833, lv denied 54 N.Y.2d 605) and “was not prepared in the regular course of business so as to qualify for admission as a business record” (National States Elec. Corp. v. LFO Constr.  Corp., 203 A.D.2d 49, 50;  see Equidyne Corp. v. Vogel, 160 A.D.2d 389, 390;  cf.  Flour City Architectural Metals Corp. v Gallin & Son, 127 A.D.2d 559, 559).

We therefore reverse the order and judgment and remit the matter to Supreme Court for a new trial and determination on equitable distribution using the 2011 date as the valuation date.

Frances E. Cafarell

Clerk of the Court