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Fernandez v. Price

June 2, 2009

ANTONIO OLADEINDE FERNANDEZ, ETC., APPELLANT-RESPONDENT,
v.
SANDRA INETT PRICE, A/K/A ADUKE FERNANDEZ, RESPONDENT-APPELLANT.



In an action, inter alia, for the partition of real property, the plaintiff appeals, as limited by his brief, (1) from so much of a judgment of the Supreme Court, Westchester County (Colabella, J.), dated January 3, 2008, as, upon an order of the same court entered May 10, 2007, among other things, appointing a receiver to sell certain real property upon the parties' consent and, upon a decision of the same court dated October 2, 2007, made after a non-jury trial, in effect, appointed a receiver and adjudged that the term "expenses" in the parties' stipulation of settlement dated August 22, 2003, is construed to mean "all costs attendant to the property through its sale," and (2) from so much of an order of the same court entered June 12, 2008, as, sua sponte, resettled so much of the order entered May 10, 2007, as continued the receiver's authority to act "until final judgment or further order of the court," by, in effect, deleting the provision "until final judgment or," and the defendant cross-appeals, as limited by her brief, from so much of the same judgment as dismissed, as academic, so much of her first counterclaim as sought specific performance of the stipulation of settlement, and dismissed so much of the first counterclaim as sought to recover damages for breach of the stipulation of settlement.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, ANITA R. FLORIO and RUTH C. BALKIN, JJ.

(Index No. 3291/04)

DECISION & ORDER

ORDERED that the appeal from so much of the judgment as, upon the order entered May 10, 2007, in effect, appointed a receiver to sell certain real property upon the parties' consent is dismissed, without costs or disbursements, as the plaintiff is not aggrieved thereby (see CPLR 5511); and it is further,

ORDERED that the appeal from so much of the order entered June 12, 2008, as, sua sponte, resettled so much of the order entered May 10, 2007, as continued the receiver's authority to act "until final judgment or further order of the court" by, in effect, deleting the provision "until final judgment or" is dismissed, without costs or disbursements, as that part of the order is not appealable as of right, and we decline to grant leave to appeal (see CPLR 5701); and it is further,

ORDERED that the judgment is modified, on the facts, by deleting the provision thereof adjudging that the term "expenses" in the parties' stipulation of settlement dated August 22, 2003, is construed to mean "all costs attendant to the property through its sale" and substituting a provision therefor adjudging that the term "expenses" is construed to mean "expenses of the sale;" as so modified, the judgment is affirmed insofar as reviewed, without costs or disbursements.

The plaintiff and the defendant, although never legally married, had an approximately 20-year relationship commencing in 1982, during which time they had two daughters. While living together, the parties acquired a very large waterfront property at The Peninsula, Premium Point, in Mamaroneck (hereinafter Premium Point).

In settlement of a quasi-matrimonial action subsequently instituted by the defendant against the plaintiff in Scotland, the parties entered into a settlement agreement concerning various real properties and personal property they acquired. Among other provisions, the settlement agreement provided that "[t]he Property in New York known as The Premium Point will be sold and the proceed[s] divide[d] equally between the parties and expenses will be deducted from [the plaintiff's] fifty percent." The plaintiff testified that during the negotiations of that provision of the settlement agreement, he forwarded a draft of the settlement to the defendant. He also testified that the version of the draft that he sent to the defendant did not mention expenses. The defendant testified that she added certain handwritten language that "taxes, expenses, upkeep related to said property are deducted from 50% of... [the plaintiff's] share." The final typewritten version, which became the settlement agreement, only included the term "expenses."

Shortly after the parties settled their action in Scotland, the plaintiff commenced the instant action against the defendant for, inter alia, partition of Premium Point. The defendant counterclaimed, among other things, to recover damages for breach of the settlement based on the plaintiff's alleged failure to list and sell Premium Point. The defendant also counterclaimed for specific performance of the settlement agreement. The plaintiff discontinued his action and the matter proceeded to a non-jury trial solely on the defendant's counterclaims.

During the non-jury trial, the defendant moved for the appointment of a temporary receiver pursuant to CPLR 6401 in order to facilitate the sale of Premium Point, given the parties' absence from the United States. The plaintiff stated that he would agree to the appointment provided certain conditions were met concerning the selection of a real estate broker and exclusion of a certain person from the premises. In an order entered May 10, 2007, the court appointed a receiver, stating that the parties had agreed to the appointment of a receiver. The order made the appointment of a receiver subject to the conditions the plaintiff requested and authorized the receiver to "continue in his duties as Receiver until final judgment or further Order of the Court."

At the conclusion of the non-jury trial, the Supreme Court issued a decision dated October 2, 2007, finding that the term "expenses," as used in the agreement, was ambiguous. Looking at the extrinsic evidence and construing the settlement agreement against the plaintiff as its drafter, the court determined that "expenses" meant "all costs attendant to the property through the sale" and not, as the plaintiff suggested, only those expenses associated with the sale of the property. In addition, the Supreme Court dismissed the defendant's counterclaim to recover damages for breach of the settlement agreement and for specific performance of the settlement agreement, reasoning, inter alia, that that claim had been rendered academic by the consensual appointment of the receiver.

Following the entry of the judgment, the receiver informed the Supreme Court and the parties that he had obtained a buyer for Premium Point and submitted a proposed contract of sale. The plaintiff objected to the receiver's continued authority to act on the ground that the receivership terminated with the entry of the judgment. In an order entered June 12, 2008, the court approved the contract of sale and resettled the order entered May 10, 2007, by, in effect, deleting the ...


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