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Matter of Slater 2009 NY Slip Op 31570(U) June 30, 2009 Surrogate's Court, Nassau County Docket Number: 345627/2009 Judge: John B. Riordan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------------------------------------------------X In the Matter of the Petition of Margot Slater to Enforce a Claim against the Estate of File No. 345627 ALEXANDER B. SLATER, Dec. No. 160 Deceased, Pursuant to SCPA Article 18. ------------------------------------------------------------------------------X In a proceeding pursuant to SCPA 1803 to enforce a claim against the estate of Alexander Slater, claimant and the estate separately move for summary judgment. Decedent Alexander Slater died on February 15, 2007 a resident of Nassau County. At the time of his death, decedent was obligated to make certain support payments to his former wife Margot Slater, the claimant. Claimant and the decedent were married from November 7, 1962 to September 24, 1974. Claimant and decedent entered into a separation agreement dated April 27, 1971 and amended August 28, 1974, which survived and did not merge into the judgment of divorce dated September 24, 1974. The separation agreement, among other things, provided for a support escalator: "SEPARATION AGREEMENT 13A. Miscellaneous. A. If by reason of monetary inflation the purchasing power of the dollar is impaired, the Husband's payments to the Wife for her support and for support of the children hereunder, shall, commencing May 1, 1972, be increased in the same proportion as the rise of consumer prices as reflected in The Consumer Price Index of the United States Bureau of Labor Statistics for the New York area using May 1, 1971 as a base. This clause shall only be operative if the Wife resides in the New York area." Claimant and decedent entered into a further agreement dated August 28, 1974, which provided, among other things, that "[c]omputation of future cost of living increases shall ... be governed by the agreement between the parties."

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After acrimonious litigation, the parties entered into a stipulation of settlement dated April 10, 1980. In relevant part, the stipulation stated: "3. Increases or decreases in weekly support payments due under Article 13A of the Separation Agreement and the Divorce Judgment for the 12 month periods from May 1st to April 30th of each year, beginning May 1st, 1980, shall be calculated [using the] ... Consumer Price Index for the New York area (the CPI) ... As the May 1st CPI is not announced or published until some time after May 1st, AS [decedent] shall on May 1st of each year after 1979 continue support payments at the rate due the year immediately prior to the May 1st until AS is notified in writing of the CPI for May 1st, and the increased or decreased amount due. AS, however, may proceed with the recomputations and waive any such notice by MS [claimant]. Following such notice after May 1st, AS shall, if the recomputation has been made in accordance with the foregoing formula, make future payments in accordance therewith. In addition, AS shall promptly make a lump payment to MS (or, if there is a decrease in the CPI, make a reduction in the amount of future payments for the 12 month period in question) for the difference, if any, between the sum of the payments made since May 1st of the year using the prior year's rate and the sum of said payments recomputed using the current rate." It is undisputed that the decedent did not pay the cost of living increases set forth in the various agreements and that the claimant never provided written notice notifying the decedent of the CPI for the May 1st date. THE CLAIM In the verified claim dated July 20, 2007, the claimant sought the amount of $1,110,801.17 against the estate representing the amount of decedent's support payments that excluded annual New York CPI adjustments. In the verified petition dated January 31, 2008, the claimant, apparently in recognition of statute of limitations consideration, reduced the amount of support arrears due from the estate to $256,043.74. Claimant seeks statutory interest in the amount of $71,142.96 and an award of attorney's fees based on the parties' agreement. Claimant also seeks a percentage of income from certain oil leases that she transferred to the decedent based upon the 1974 agreement and an accounting of any such income. 2

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THE ANSWER The estate admits the various agreements. The estate, however, denies that any monies are due to the claimant under said agreements asserting that the claimant failed to provide any written notice of change in the CPI during the period 1985 through the date of decedent's death or February 15, 2007. The estate asserts that the claimant's failure to notify the decedent in writing of a change in the CPI constitutes an intentional and voluntary waiver. The estate further asserts that the claimant's claim to additional weekly support payments is barred by equitable estoppel, laches, and the applicable statute of limitations. The estate asserts that claimant failed to make demand for monies allegedly due pursuant to any oil leases from 1985 through the date of decedent's death on February 15, 2007 and asserts the same reasons to deny the claim for monies due under the oil leases as raised with regard to additional support. The estate also asserts that the claimant is neither entitled to statutory interest nor to an award of attorney's fees. THE MOTIONS Both the claimant and the estate separately move for summary judgment. Both assert that the facts are undisputed and that the matter may be determined on the merits by summary judgment. The claimant moves for partial summary judgment seeking support arrears directing the estate (a) "to pay [claimant] (i) support arrears due to her under a separation agreement in the amount of $256,043.74 that accrued and became payable during the time period from July 20, 2001 through February 15, 2007; and (ii) statutory interest on such arrears in the amount of $71,142.96; and (b) "to pay all attorney's fees and costs incurred by (claimant) in obtaining 3

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judgment on the ... claim." Claimant contends that the aforesaid agreements, when read in their entirety, obligated the decedent to pay the additional support whenever he received notice of the CPI increase, "even if receipt of such notice occurred years later." Claimant alleges she made sporadic, unsuccessful attempts to obtain cost-of living increases from the decedent in the early to mid 1980s. The decedent made payments of approximately $749 per week to claimant for some twenty (20) years without any cost-of-living increases until his death on February 15, 2007. Claimant contends that the 1980 stipulation directed only the manner in which the arrears that accrued every May 1st were to be calculated and written notice thereof was not a condition precedent. There is no dispute as to the calculation of the arrears. The estate contends that the claimant acknowledges that she never sought the CPI increases after 1986, instead waiting until the decedent died to make a claim against his estate. There is no factual dispute concerning the lack of written notice. The estate asserts that no monies are due to claimant as she did not give written notice of the increases as required by the 1980 stipulation. The estate also contends that claimant's knowing and intentional failure to notify decedent constitutes a waiver. The estate further contends that the claim is barred by the doctrine of equitable estoppel and/or laches. SUMMARY JUDGMENT The principles governing summary judgment are well established. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of act (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such prima facie 4

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showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Both sides argue that the subject agreements are unambiguous. In Kass v Kass (91 NY2d 554, 566-567 [1998]), the Court of Appeals stated: "Whether an agreement is ambiguous is a question of law for the courts (see Van Wagner Adv. Corp. v S & M Enters, 67 NY2d 186, 191). Ambiguity is determined by looking within the four corners of the document, not to outside sources (see W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 162-163). And in deciding whether an agreement is ambiguous courts `should examine the entire contract and consider the relation of the parties and the circumstances under which it was executed. Particular words should be considered not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought' (Atwater & Co. v Panama R.R. Co. 246 NY 519, 524). Where the document makes clear the parties' over-all intention, courts examining isolated provisions `should then choose that construction which will carry out the plain purpose and object of the [agreement]' (Williams Press v State of New York, 37 NY2d 434, 440, quoting Empire Props. Corp. v Manufacturers Trust Co., 288 NY 242, 249)." Applying these principles, the court determines that the stipulation of settlement which, in effect, modifies the previous agreements, unequivocally manifests an intention that written notice be provided to decedent prior to the obligation that he pay increased support based on the CPI. The court finds that a plain and sensible reading of the stipulation mandates such conclusion. Thus, contrary to the claimant's contention, the court finds that the language contained in the stipulation constitutes a condition precedent to claimant's right to cost-of-living increases. 5

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"A condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement raises (Oppenheimer & Co. v Oppenheimer, Appel. Dixon & Co., 86 NY2d 685, 690, 660 N.E.2d 415, 636 NYS2d 734 citing Calamari and Perillo, Contracts

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