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Sweeney v. Sweeney

March 23, 2010

DONALD SWEENEY, APPELLANT-RESPONDENT,
v.
TINA BEVERLY SWEENEY, RESPONDENT-APPELLANT.



In an action for a divorce and ancillary relief, the plaintiff appeals (1) from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated January 15, 2009, as granted that branch of the defendant's motion which was to dismiss the second, third, and fourth causes of action pursuant to CPLR 3211(a)(1), (5), and (7), and as granted those branches of the defendant's motion which were for summary judgment on her counterclaims for a divorce pursuant to a stipulation of settlement and to enforce the stipulation, and (2) from a judgment of divorce of the same court entered May 5, 2009, upon the order, and the defendant cross-appeals from (1) so much of the order dated January 15, 2009, as denied that branch of her motion which was for an award of an attorney's fee, and (2) so much of the judgment as failed to award her an attorney's fee.

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.

PETER B. SKELOS, J.P., ANITA R. FLORIO, L. PRISCILLA HALL & LEONARD B. AUSTIN, JJ.

(Index No. 203057/07)

DECISION & ORDER

ORDERED that the appeal and cross appeal from the order dated January 15, 2009, are dismissed; and it is further,

ORDERED that the judgment entered May 5, 2009, is modified, on the law, by adding thereto a provision awarding the defendant the reasonable attorney's fees incurred in enforcing the stipulation of settlement; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, that branch of the defendant's motion which was for an award of an attorney's fee is granted, the order dated January 15, 2009, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and determination of the amount of an award of a reasonable attorney's fee, and the entry of an appropriate amended judgment thereafter; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal and cross appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal and cross appeal from the order are brought up for review and have been considered on the appeal and cross appeal from the judgment (see CPLR 5501[a][1]).

The plaintiff, Donald Sweeney, and the defendant, Tina Beverly Sweeney, were married in California in 1995, and have no children. The parties separated in 2003, and in 2004 they applied for a consent order in Australia,, in which they listed the value of certain Australian property at AUD 2 million and executed a stipulation of settlement, which among other things, awarded the Australian property to the defendant. The defendant sold the Australian property for AUD 2.8 million approximately three months after executing the stipulation of settlement.

The plaintiff thereafter commenced this action for a divorce and ancillary relief on the ground of constructive abandonment, and to vacate the stipulation of settlement on the grounds of fraud and overreaching. The plaintiff alleged, inter alia, that the defendant committed fraud by representing that the Australian property was valued at AUD 2 million, and by selling it for AUD 2.8 million approximately three months later. The defendant counterclaimed, inter alia, for a judgment of divorce based on the stipulation of settlement and to enforce those provisions of the stipulation of settlement pursuant to which the plaintiff agreed to pay the defendant AUD 115,176 on November 4, 2006, and transfer certain property located at 10 Bowling Green Row in Manchester, England to her. The defendant then moved to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7), arguing that the plaintiff had failed to allege sufficient grounds to have the stipulation of settlement vacated. The defendant also moved for summary judgment, inter alia, on her counterclaims for a judgment of divorce based on the stipulation of settlement, to enforce the aforementioned provisions of the stipulation of settlement, and for an award of an attorney's fee.

In the order dated January 15, 2009, the Supreme Court, inter alia, granted those branches of the defendant's motion which were to dismiss the second, third, and fourth causes of action, to enforce the aforementioned provisions of the stipulation of settlement, and for a judgment of divorce based on the stipulation of settlement, and denied that branch of the defendant's motion which was for an award of an attorney's fee. The judgment of divorce was entered on May 5, 2009.

These appeals and cross-appeals ensued.

"[I]t is well settled that bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action. When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether she has stated one" (Meyer v Guinta, ...


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