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Moss v. Moss

Supreme Court, New York County

July 3, 2013

MOSS, JAMES A
v.
MOSS, SARA E Index No. 653809/2012

Unpublished Opinion

PRESENT HON. CAROL EDMEAD Justice

Based on the submissions, the motion and cross-motion are resolved as follows:

In this breach of contract action, plaintiff James A. Moss (the "Husband") moves to reargue this Court's March 7, 2013 Decision, and upon reargument, granting him summary judgment on various causes of action against the defendant Sara E. Moss (the "Wife"), to dismiss her counterclaims and affirmative defenses, and directing her to, inter alia, purchase his interest in the parties' former marital apartment (the "Apartment") in accordance with the parties' March 27, 2003 Separation Agreement (the "Agreement").
In turn, the Wife cross-moves also for reargument, and upon reargument, seeks various forms of relief, including an order compelling the Husband to perform his obligations under the Agreement so as to place the Apartment on the market for sale and to comply with various portions of the Agreement in connection therewith.

Factual Background

This action arises from the parties' dispute regarding the disposal of the Apartment pursuant to the Agreement, which provided that the Apartment:

"... shall be put on the market for sale at the discretion of the Wife, but in no event... later than one hundred and twenty (120) days following David's graduation ..., provided however, that the Wife shall have a right of first refusal and the option of purchasing the Husband's interest in the [apartment] prior to and in lieu of such sale, provided that she shall serve written notice upon the Husband of her irrevocable election to exercise her right of first refusal or option to purchase and adhere to the procedures for exercising such rights as set forth below in paragraph C(14)(a) of this Article " (Article III.C.7 (emphasis added)).

The Agreement further states in paragraph III.C. 14(a)(1):

"14. (a) Notwithstanding the foregoing, the Wife shall have
(I) a right of first refusal to purchase the Husband's interest in the . . . Apartment in the event the parties obtain a Qualified Offer The Wife may exercise her right of first refusal by notifying the Husband in writing of her irrevocable election to do so within ten (10) days of the parties' receipt of the Qualified Offer [...]; and
(ii) the option to purchase the Husband's interest in the . . . Apartment. The Wife may exercise this option by notifying the Husband in writing of her irrevocable election to do so at any time prior to the receipt of a Qualified Offer . . . . For purposes of this subparagraph, the value of the. . . Apartment shall be determined by agreement of the parties or in accordance with the procedures set forth in paragraph C(9) of this Article"
(Emphasis added).

Thus, under the Agreement, within 120 days following David's graduation (which occurred on May 15, 2012), the Apartment was to be sold and the sale proceeds divided between the parties. However, the Wife is permitted, before the occurrence and in lieu of any such sale, to ...


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