Opinion
10/6450
10-21-2017
John S. Gizzi, Plaintiff, v. Tina Gizzi, Defendant.
Joan de R. O'Byrne, Esq. Attorney for Plaintiff Rochester, New York Jennifer Adams, Esq. Attorney for Defendant Rochester, New York
Joan de R. O'Byrne, Esq. Attorney for Plaintiff Rochester, New York Jennifer Adams, Esq. Attorney for Defendant Rochester, New York Richard A. Dollinger, J.
"He who hesitates is lost" may be a cruel aphorism, but when the statute of limitations looms, New York gives its courts little latitude to protect tardy litigants and sets a high bar for evading its reach. This matter poses a simple inquiry: does a modification agreement in a post-judgment context extend the statute of limitations for financial obligations contained in the original judgment of divorce?
Although the idea is undoubtedly older, the present aphorism is attributed to a misquotation or an adaptation from Joseph Addison's play Cato (1712): "The woman that deliberates is lost." The phrase is cited by courts in a gender-neutral fashion. Summy-Long v. Pa. State Univ., 2015 U.S. Dist. LEXIS 138247 (M.D. Pa. 2015); Dudley v. Cash, 82 Va. Cir. 1 (Cir. Ct.Va. 2010)(attributing the phrase to Addison).
In a separation agreement, the former husband agreed to pay his former wife more than $200,000 as equitable distribution. In 2009, within two years after the agreement was signed, he paid all but $28,524.39 of the award. The wife now seeks to recover the unpaid sum, but as she readily concedes, more than six years have elapsed since the separation agreement was signed and the obligation accrued. It is undisputed that the six-year statute of limitations governs the wife's contractual claim against her husband. CPLR 213 (2).
The wife filed her claim for the unpaid funds pro se. In her application, the wife alleges that the basis for the claim for the unpaid funds was an order and judgment dated on August 31, 2010. The current application was filed May 15, 2017, a date more than six years after the judgment was filed. However, the parties' separation agreement provided that the husband would pay the distributive award in two parts: the first, upon execution of the agreement, and the second, "on or before one year from the date of the execution of the agreement by both parties." The agreement was executed by both parties on May 20, 2009. Under the terms of the agreement, the second installment payment for the distributive award was required to be paid by May 20, 2010 - a date still more than six years before the commencement of this action.
Faced with this seemingly insurmountable statute of limitations roadblock, the wife argues that a 2011 modification agreement "reset" the statute of limitations and that the right to claim the unpaid funds was extended to six years after the execution of the modification agreement. The modification agreement did not specifically mention the equitable distribution payments and merely changed the residence schedule of the couple's children. However, the modification agreement did contain the following language:
Except as specifically modified here in, the parties ratify and reaffirm each and every provision of their separation agreement dated May 20, 2009, and all terms and conditions contained there in shall continue in full force and effect.
The modification agreement makes no reference to the unpaid equitable distribution award. Read fairly and reasonably, the modification agreement only relates to the residency of the children and the time for visitation/residency by each parent. There is no mention of any financial terms and no general release regarding financial terms in any portion of the agreement. In 2014, the parties agreed to have the modification agreement incorporated into a court order. Entitled "consent order and incorporation," the order stated that the "First Modification Agreement . . . modified certain terms and conditions in connection with the custody and residency of the couple's three children." The order, signed December 14, 2014, concluded with language that "all terms and conditions of the parties separation agreement, date May 20, 2009 and Judgment of Divorce not specifically modified by the First Modification Agreement, December 14, 2011, shall remain in full force and effect."
Initially, this court determines that the wife's cause of action for breach of contract did not accrue until one year from the date of the agreement. The agreement required the second installment to be paid by May 20, 2010. Her cause of action to recover damages for breach of contract accrued at the time of the alleged breach on May 20, 2010. CPLR 213 (2); Affordable Hous. Assoc., Inc. v Town of Brookhaven, 150 AD3d 800 (2d Dept 2017); Meadowbrook Farms Homeowners Assn., Inc. v JZG Resources, Inc., 105 AD3d 820, 822 (2d Dept 2013). Without a new accrual date, occasioned by the signing of the modification agreement, the wife's claim must be dismissed.
In considering whether the modification agreement extends the statute of limitations, the first stop is General Obligations Law § 17-101:
An acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take
an action out of the operation of the provisions of limitations of time for commencing actions under the civil practice law and rules other than an action for the recovery of real property.General Obligation Law § 17-101. Simply put, the statute effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt. Lynford v. Williams, 34 AD3d 761 (2d Dept 2006). To constitute an acknowledgment of a debt sufficient to extend the statute of limitations, a writing must recognize an existing debt and contain nothing inconsistent with an intention on the part of the debtor to pay it. Mosab Constr. Corp. v Prospect Park Yeshiva, Inc., 124 AD3d 732 (2d Dept 2015). The court of Appeals in Morris Demolition Co. v Board of Educ. of City of NY, 40 NY2d 516, 521 (1976), set a high bar for anyone seeking to evade the statute of limitations in a contract action. The court, in rejecting a request to extend the limitations period, noted that any alleged reaffirmation of a debt - made during the period that the claim was ripe or thereafter - must be accompanied by "circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder." Id. at 371.
Few litigants, seeking to extend a statute of limitations based on an alleged reaffirmation of the debt, have hurdled the high bar set by the Court of Appeals because any purported acknowledgment must import "a clear intention to pay." Estate of Vengroski v Garden Inn, 114 AD2d 927, 928 (2d Dept 1985). The purported writing must recognize the existing debt and contain nothing inconsistent with an intention on the part of the debtor to pay it. Knoll v Datek Sec. Corp., 2 AD3d 594, 595, (2d Dept 2003) The "acknowledgment" to start the statute running anew must be more than a hint, reference or discussion of the old debt and must amount to clear recognition of the claim as presently existing. Matter of Gilman, Son & Co., 57 F2d 294 (S.D.NY 1932). Extending the statute of limitations is no occasion to resort to subtle or refined distinctions; there must be an express recognition of the debt. Curtiss-Wright v Intercontinent Corp., 277 AD 13 (1st Dept 1950). Stated simply, the acknowledgment must be one which "leaves no room for doubt". Fade v. Pugliani, 8 AD3d 612 (2d Dept 2004) (whether a purported acknowledgment is sufficient to restart the running of a period of limitations depends on the circumstances of the individual case).
Given these limitations, a score of New York courts have refused to extend the statute of limitations by imputing an intention to extend the statute of limitations to otherwise unambiguous documents or stretching written agreements beyond reasonable bounds. In Mosab Constr. Corp. v Prospect Park Yeshiva, Inc., supra, the alleged writing did not specifically acknowledge the debt and gave no indication that the defendant would pay the plaintiff. In Curtiss-Wright Corp. v. Intercontinent Corp., 277 AD3d (1st Dept 1950) the court held an acknowledgment, in its setting does not, by any reasonable implication, import "an intention to pay" the item. See also Goldrick v. Goldrick, 99 Misc 2d 749 (Sup.Ct. Suffolk Cty 1979) (signed mortgage not a reaffirmation of constructive trust claim); Gad v Almod Diamonds Ltd., 147 AD3d 417 (1st Dept 2017) (statute of limitations not extended by subsequent oral agreement). In contrast, court have held that written documents, which evince some intention to pay a debt, can constitute the basis for an extension of the statute of limitations. In George Tsunis Real Estate, Inc. v. Benedict, 116 AD3d 1002 (2d Dept 2014), an email acknowledged the plaintiff's entitlement to a brokerage commission and demonstrated the defendants' intent to pay it, thus restarting the statute of limitations. See also Knoll v. Datek Secs. Corp., 2 AD3d 594 (2d Dept 2003) (to recover a brokerage commission, a party submitted commission analysis statements which could be interpreted as a written acknowledgments sufficient to take the action outside the statute of limitations).
Here, the written modification agreement falls short of the high bar set by the Court of Appeals. The modification agreement makes no reference to the unpaid distributive award and the agreement never mentions equitable distribution. There is no language suggesting that the husband owed his wife anything at the time of the execution of the modification agreement. There is no language suggesting that the husband, by signing the agreement, was reaffirming his obligation to pay the amount required by the 2010 agreement. There is ample room for doubt in whether the "continue in full force and effect" language, concluding the agreement, was a stand alone reaffirmation of the debt connected to the distributive award.
For these reasons, the modification is not a writing sufficient under Section 17-101 of the General Obligations Law to bring the wife's claim for payment of the final amount of a distributive award back to life. CPLR 213(2), the statute of repose, inters this claim.
The husband's motion to dismiss the wife's application is granted. Dated: October 21, 2017 Richard A. Dollinger, A.J.S.C.