Opinion
2013-05-16
Bari Yunis SCHORR, Plaintiff–Respondent, v. David Evan SCHORR, Defendant–Appellant.
David E. Schorr, New York, appellant pro se. Newman & Denney P.C., New York (Louis I. Newman of counsel), for respondent.
David E. Schorr, New York, appellant pro se. Newman & Denney P.C., New York (Louis I. Newman of counsel), for respondent.
TOM, J.P., ANDRIAS, RENWICK, DeGRASSE, JJ.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered May 4, 2012, which, to the extent appealed from as limited by the briefs, denied defendant's cross motion to compel plaintiff to sell her interest in the marital residence to his parents, unanimously affirmed, without costs.
“It is well-settled that, prior to entry of a judgment altering the legal relationship between spouses by granting divorce, separation or annulment, courts may not direct the sale of marital property held by spouses as tenants by the entirety, unless the parties have consented to sell” ( Moran v. Moran, 77 A.D.3d 443, 444, 908 N.Y.S.2d 661 [1st Dept. 2010] ). Here, plaintiff's statement in her affidavit, filed in connection with a prior motion in this action, did not constitute a stipulation or agreement between the parties to immediately sell the marital residence, as it did not reflect a meeting of the minds and did not contain specific terms ( seeCPLR 2104; see also Delvito v. Delvito, 6 A.D.3d 487, 775 N.Y.S.2d 71 [2d Dept. 2004] ). Nor is this case akin to those in which the parties entered into an on-the-record stipulation of settlement that specifically set forth the terms of the agreement ( see Markson v. Markson, 139 A.D.2d 705, 527 N.Y.S.2d 461 [2d Dept. 1988] ) or in which a party consented to the sale on-the-record in open court in response to the court's questions ( see Frisina v. Frisina, 178 A.D.2d 460, 460, 577 N.Y.S.2d 131 [2d Dept. 1991] ).
Plaintiff is not prohibited from refusing to consent to the sale by the doctrine of judicial estoppel, given that she never previously took the position that she was amenable to an immediate sale of the residence to defendant's parents ( see generally Nestor v. Britt, 270 A.D.2d 192, 193, 707 N.Y.S.2d 11 [1st Dept. 2000] ). In fact, she rejected such a proposal.