Opinion
21329/1988.
Decided on November 3, 2010.
James D. Bonamassa, Esq., Brooklyn, NY, Attorney for the plaintiff.
Pirrotti Law Firm, LLC, Scarsdale, NY, Attorney for the defendant.
Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this motion.
PapersNumbered
Notice of Motion/Order to Show Cause/Petition/ Cross Motion and Affidavits (Affirmations) Annexed..................1........ Answering Affidavits (Affirmations).......................................... Replying Affidavits (Affirmations)........................................... Other Papers.................................................................Upon the foregoing cited papers, the decision/order on this motion is as follows:
The plaintiff, by order to show cause dated June 9, 2010, moves for an order: 1) directing the defendant to transfer $100,000.00 to the plaintiff pursuant to a qualified domestic relations order (QDRO), from the pension and/or profit sharing plans of defendant; 2) directing the defendant to transfer all of his right, title and interest to the co-operative apartment located at 9255 Shore Road, Apartment 3D, Brooklyn, NY to the plaintiff; and 3) directing the defendant to pay the plaintiff's attorney's fees and costs for the motion, and for such other and further relief as may be just, proper and equitable.
The defendant opposes the motion in part, and moves for an order: 1) directing the plaintiff to forward the papers for the transfer of the $100,000.00 pursuant to a QDRO within thirty (30) days from the date of an order of this Court; 2) denying the plaintiff's request for an order that the defendant transfer all of his right, title and interest to the co-operative apartment located at 9255 Shore road, Apartment 3D, Brooklyn, NY to the plaintiff; and 3) awarding such other and further relief as this Court deems just, suitable and proper.
On March 8, 1991, Judge William Rigler adjudged and decreed that the marriage between the plaintiff and the defendant was dissolved by reason of the constructive abandonment. A stipulation of settlement of all issues in the divorce proceeding was entered into on the record before the Court on November 15, 1990. The stipulation of settlement was incorporated but not merged into the judgment of divorce. In the stipulation of settlement the plaintiff and the defendant agreed that the sum of $100,000.00 would be transferred from the defendant's pension and or profit sharing plans to the plaintiff. The parties also stipulated that both the plaintiff and the defendant would cooperate to have the QDRO submitted and executed as soon as possible.
Further, the parties stipulated that within 30 days of the date of the stipulation, the defendant would transfer to the plaintiff his right, title and interest in and to the co-operative apartment, located at 9255 Shore Road, Apartment 3D, Brooklyn, NY, by executing an appropriate stock power and relinquishing his right to the proprietary lease and executing any and all documents to effectuate the transfer.
The plaintiff argues no QDRO was ever drafted and submitted to the Court for signature immediately after the divorce. The plaintiff asserts there was a billing dispute between herself and the her previous attorneys, which caused her attorneys to sue her for legal fees. As a result no post judgment work was ever done by her attorneys. Further, the plaintiff alleges that the original firm handling her divorce has not existed as a firm since 1996, and the individual attorney handling her divorce is believed to have relocated to Vancouver, Canada, in which no forwarding information for him is available. The post judgment work consisted of submitting the QDRO and executing the transfer of the defendant's interest in the co-operative apartment, where the plaintiff currently resides, to the plaintiff.
Regarding the QDRO, the defendant concedes that the statute of limitations, concerning a matrimonial matter where the parties stipulate as to an allocation of monies pursuant to a QDRO, does not begin to run until such time as when the party is eligible for the retirement benefits. The defendant asserts he is not eligible for the retirement benefits at this time, therefore the statute of limitations has not begun to run.
The defendant argues that the stipulation of settlement on the record states that any documents in order to transfer the co-operative apartment shall be executed "within 30 days." Further, when the defendant did not transfer his interest in the co-operative apartment within 30 days he was in breach of the contract. The defendant argues that the statute of limitations for breach of contract is six years, and that it began to run at the expiration of the 30 days in which the defendant had to comply with the stipulation of settlement. The defendant asserts that the plaintiff is barred from bringing an action because the six year statute of limitations has expired.
Pursuant to CPLR § 213 (1) an action for which no limitation is specifically described by law must commence within six years. ( McKinney's CPLR § 213(1) ). Case law has established that the six year statute of limitations will apply in non-money judgments. Woronoff v.Woronoff, 70 AD3d 933 (2d Dept. 2010) lv to app den 14 NY3d 713 (2010); see also Tauber v. Lebow. 65 NY2d 596 (1985). In Woronoff v. Woronoff, the parties obtained a divorce judgment stating the plaintiff would pay the defendant the sum of $87,000.00 for her share of his business. The parties entered into an agreement that modified a portion of the judgment in 1990. Twenty years after the modification the plaintiff tried to enforce the judgment after she obtained a clerk's judgment against the plaintiff. The plaintiff, then commenced an action for wrongful procurement of the clerk's judgment. The defendant brought a counterclaim alleging that the plaintiff breached the judgment of divorce. The court held, since the defendant did not seek to enforce her distributive award nor reduce it to a money judgment until well beyond six years after the divorce judgment was entered, and even well beyond six years after the parties entered into a modification agreement, the Supreme Court properly dismissed the counterclaim as time-barred. 70 AD3d 933.
Similarly, in the present case, the plaintiff 20 years after the judgment has brought an action seeking enforcement of the divorce judgment. The parties agreed that the defendant would have 30 days from the date of the stipulation, (November 15, 1990) to comply by transferring to the plaintiff his right, title and interest in and to the co-operative apartment. The defendant failed to do so. The judgment is a non-money judgment and therefore the six year statute of limitations applies. The statute of limitations began to run on December 15, 1990. The plaintiff had until December 15, 1996 to bring an action to enforce the judgment, but failed to do so. The plaintiff is well beyond the statute of limitations, and is barred from bringing the action now, 20 years after the judgment.
Accordingly, it is hereby ORDERED, that upon receipt of the requested documents, the defendant shall have 60 days to complete the QDRO for the transfer of the $100,000.00 from the defendant's pension and /or profit sharing plans to the plaintiff; and it is further
ORDERED, that the plaintiff's motion ordering the defendant to transfer all of his right, title and interest to the co-operative apartment located at 9255 Shore Road, Apartment 3D, Brooklyn, NY to the Plaintiff is denied.
All issues not specifically addressed in this decision and order are denied.
This constitutes the decision and order of the court.