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Wolff v Kelman 2010 NY Slip Op 30291(U) February 8, 2010 Supreme Court, New York County Docket Number: 107820/09 Judge: Carol R. Edmead 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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ANNEDON21I112010

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SUPREME COURT OF THE STATE OF NEW YORK

- NEW YORK COUNTV
PART

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No

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Wplyhg Attidavhr

Crors-Motion: 63 Yes

I accordance with the accompanying Memorandum D c s o ,it is hapby n eiin
ORDERED Qat the motion bydefendant Judith Kelman, aka Judith Scardho for iummary judgment pursuant to CPLR 83212 disn)l'ssing the complaint by plaintiff Ivm Wolff is lenicd i its entirety; and it is further n
ORDERED that defendant shall sew0 a copy of this order with noticb of entry upon hintiff within 20 days of entry; and it is further
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ORDERED that the partics appear for a preliminary conference on March 30,2010.

T i constitutes tho decision and order of the Court; hs
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Dated:
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J. 8.C .

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0 REFERENCE

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Index No. 107820/09

In this breach of contract action by former husband against his former wife, arising out of
the parties' separation agreement, defendant Judith Kalman aka Judith Scardino ("defendant")
moves for an order purauant to CPLR 53212 granting summary judgment in her favor dismissing

,eachof the five causes of action set forth in the complaint. Background Plaintiff Ivan Wolff ("plaintiff ' and defendant were married in 1998. In June 2005 they )
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entered into a separation agreement (the %grpement"), incorporated, but not merged, into a
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judgment of divorce. Pursuant to the agrement, thu partias divided all their marital property except certain rugs and fhmiture (the "rugs") which remained i defendant's apartment after n plaintiff moved out. Articlo XXI, section C of the agreewant states in relevant part:

C.

The husband and wife shall attempt to mutually agree upon a division of the items

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of personal property set forth in suction C of this Agreemont. In the event the parties are unable to agree upon a mutually satisfactory distribution of thtoe items, the parties shall return to m d a i n to determine same, pursuant to the terms set eito forth in Article XV of this Agreement. In determining a distribution of the property set forth on Schedule "C" of this Agreement whether by agmmcnt, mediation or application to a Court of competent jurisdiction, the parties agree to be guided and/or bound by the following general principlaa:

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It is the intention of the parties to equalize any disparities in value with a payment in cash or in kind approximately one (1) year fiom the date of execution of this Agreement, after each party has better determined his or her new living arrangement and ability to maintain the subject personal property, , .

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The parties shall attempt to ascertain the value of such items by a p e m e n t . . . , If the partits are unable to agree upon a value of auch items, the partias will participate in mediation, pursuant to Article XV of this Agreement . . . . The parties shall equally share the cost of mediation.
In June 2006,defendant sent plaintiff an email asking whether he wanted any of the rugs.

Plaintiff responded that he did not need the rugs "just right now; the time fhnc is more one year plus."' In an October 2006 email;again, in response to defendant's question concerning the rugs, plaintiff replied that he `'probably [did] not need either furniture or rugs; Sue [his companion] has ."~ more than enough for two p l ~ ~ t 8 In Auguat 2007,plaintiff asked defendant to divide the rugs or their monetary value within the next several months and defendant responded that she would "be glad to pass things . . , back to [plaintiffJ pnd
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. . settle up."3 Finally, in December 2008,

plaintiff asked defendant to divide the rugs but she refisad to do so. Unable to resolve the diapute, plaintiff requested that the partics engage in mediation, but defendant rufhsed to mediate unless plaintiff covered the fbll cost. The parti- engaged in mediation in March 2009, but to no avail. Defendant refused to divide the rugs or their value.

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' Plaintiffmdavit, 1 7 'Plaintiff Affidavit 1 8 .
Id., Exhibit B,

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The instant action for breach of contract, breach of an implied covenant of good faith and
fair dealing, specific performance and attorney's feea ensued. In his first cause of action for
breach of contract, plaintiff asserts that dofadant breached the agreement by refusing to share the
costs of mediation.

I his second cause of action,alao for broach of contract, plaintiff asserts that n

defendant breached the agreement by refusing to give plaintiff the rugs or to "qualize the disparity in value," Le., to divide the value of the rugs. In his third cause of action for breach of implied covcnant of good faith and fair dealing, plaintiff asserts that defendant breachad her implied covenant by refusing to mediate in good faith and construing the agreement 88 time barred. I his fourth cause of action for specific performance, plaintiff assarts that the rugs are n unique, there is no adequate remedy at law for defundant'a breach and thus, sho is obliged to
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deliver the rugs to plaintiff. The fifth cause of action is for recovery of legal few arising from the breach.
In her motion, defendant argues that the entire action, including tho breach of contract

claims, are time-barred, Defendant msurts that suction C of Article XII of the agreement provides that mediation is a condition precedent to the commencement of tho lawsuit, and that such demand to raise and resolve any disputes as to the rugs,must b t made within one yuar of signing the agreement. Further, the parties may agree to shorten the six-year statute of limitations pariod applicable to breach of contract claims. Here, plaintiff waited more than three timm the t m ie period to raise the issue regarding the rugs. Plaintiff defeated the expectation of the parties, which was to provide certainty within a short period of time to all mattera relating the personal property at issue. Defendant contends that sho clearly exprussad that she w s proceeding to the rnudiation a

in 2009 without prejudice to her position that plaintiff 8 claims are time-barred.
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Additionally, defendant contends that the cause of action for an implied covenant o f g d

faith should also be dismissed 88 plaintiff simply tries to vary the express time limitation of the
agraament. Further, defendant asserts, that the cause of action for specific parfonnance cannot be maintained because plaintiff specifically disclaimed his interest in the rugs. Plaintiff opposes aummaryjudpent, asserting thgt there are material issues of facts as ta whether tho parties contemplated that plaintiff would forfeit his share of the rugs if the division is not accomplished within "approximately" onu year of aigning the agrement; whether defendant

w i e the alleged one-yaar r q i e e t by advising in her emails that she would honor her avd eurmn
obligation to fairly divide the rugs; and whether plaintiff reasonably relied on defendant's willingness to divide the value of the rugs even after the supposed one-year date. Plaintiff maintains that defendant ignores the plain language of the agreement, which unambiguously provides that the parties agreed to divide the rugs or "equalize any disparity in

their value" "approximatoly one p r from *e date of the agreement and after the p k e s a"
determined their now post-separation living arrangements. Plaintiff further asserts that one year language waa not intended by the partias as a deadline, but merely as an approximate estimate 88 to how long it would take each party to dcteminc their rcsptctivu living an-angments and to decide what items to keep. Additionally, plaintiff assarts that defendant is equitably estopped from claiming that the agreement is unenforceable as t i m a b a r d bacausa, by her email statements, she apparently to "lulled [plaintiq into inactivity and induced [him] continue the negotiation until the expiration

of the time within which the action could be maintainad." Plaintiff also contends that the
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agreement did not reduce the statute of limitations for breach of contract to onu year bacaw the agreement does not contain a "reducing statute of limitation" languago. Plaintiff also contends that defendant breached her implied covenant of good faith because she never intended to negotiate with plaintiff in good faith. Further, plaintiff contends that even though his October

2006 email states that ha probably did not need the rugs, hc never disclaimed his ownership or
waived his rights to the value of the rugs. Consequently, plaintiff rqucsts that defandant'a motion be denied in its entirety.

In her reply, defendant contends that her responses "OK" to plaintiffs mails do not
qualify as modifications of the one-year provision of tho agreement because of the "no waiver"

clause in Article XX of the agreement, which requires any amendments or modifications to be in
writing, executed with the same formality as the agreement. And even if plaintiffs interpretation

of June 2006 email, stating that the time frame is "more one year plus" is correct and the one-year
limit was extended for an additional year, plaintiff never uompliod with the new limitation period.

Further, defendant asserts that in her August 2007 email exchange, ah0 specifically
intundd to exclude the rugs from the subject property referred to by her aa "stuff," which she
agreed to divide with plaintiff. Finally, dcf@dant aswrts, if plaintiff is permitted to bring his

claim at this late date, she will suffer damages because she incurred more than $40,000 in architect and designer fees during the 2006 renovation of har apartment which needad to be "designed around the rugs."
Discussion

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "c~usc action , * . has no merit" (CPLR $3212 of
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[b]), sufficient to warrant the court aa a mat&r of law to direct judgment in his or her favor (Bush
Y St.

Claire's Hosp., 82 NY2d 738,739 [19931; Wiregrad v New York Unit? Med. Ctr., 64 NY2d

[Sup 851,853 [1985]; Wright v National Amusenlants, Inc., 2003 NY Slip Op 51390 [UJ Ct New

York County, 20031). Thus, the proponent of a motion for summaryjudgment must make aprima
facie showing of entitlement to judgment as a m t u of law, by advancing sufficient "evidentiary atr proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v

Nav York Univ. Med. Ctr., supra; Zuckerman v City of New York,49 NY2d 557,562 [ 19801;
Si'lverman v Perlbinder, 307 AD2d 230,762 NYS2d 386 [1" Dept 20031; Thomas v Holzberg,

300 AD2d 10, 11,751 NYS2d 433,434 [ 1' Dcpt 20021). A party can prove aprima facie
entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra; Prudential Securities Inc. v Rovello, 262 AD2d 172 [1st Dept
19991).

Alternatively, to defeat a motion for summary judgment, the opposing party must show
hcts sufficient to require a trial of any issue of fact (CPLR $3212 [b]).

Thus,where the

proponent of the motion makes aprima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Vermetre v Kenworth Zhck Co., 68 NY2d 714,717 [1986]; Zuchrman, supra at 560, 562; Forrest v Jewish Guildfor the Blind, 309 AD2d 546, 765 NYS2d 326 [ 1" Dept
20031).

Like the proponent of the motion, the party opposing the motion mwt set forth evidentiary proof in admissible form in support of his or her claim that material triable iasuus of
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fact exist (Zuckermun, supra at 562). The obponant "must assemble and lay bare [its] affirmative proof to demonstrate that genuine iesuue of fact uxist" and "the issue must be shown to be mal, not feigned since a sham or frivolous issue will not prucludo summary relief' (Kornfeeld v N ` Technologies,Inc., 93 AD2d 772 [lst Dapt 19831,afd, 62 NY2d 686 [19841).

Basad on a plain reading of the relevant portions oftha agreement, the agreement dots
not contain explicit language wincing an intent that mediation within one year of the aigning of the agreement is a condition pmudtnt to commencing any action. In adjudicating the rights of parties to a contract, courts may not fashion a new contract under the guise of contract construction (Carnaiorev Farunce, 50 AD3d 471 [1" Dept 2008]), quoting Sfutt Y Sfutt,64 NY2d

966 [1985I); rather, they are required to discurn the intent of the partits, "to the extent that [the
parties] evidenced what they intended by what they wrote" (Sfuttv Sfutt,quoting Labu v Carey, 29

NY2d 302 [ 19711). Where the intention of the parties is clearly and unambiguously set forth,
Rubin v Rubin, 234 AD2d effect must be given to the intent as indicated by the language USMI (id.;

185, 186 [l"Dept 19961).
"[A] contractual duty ordinarily will not be construed BS a condition precedent absent

clear language showing that the parties intendud to make it a condition*'(Rooney v SZomowitz,l
AD3d 864,784NYS2d 189 [3d Dapt 20041 citing Unigard S e a r @ Ins. Co. v North Riv. Ins.

Co., NY2d 576,581,584NYS2d 290 [19921). `The court cannot imply [a] condition that the 79
parties chose not to insert in their contract" (Cumaforev Farance, at 471-472, quoting Nichols v Nichols, 306 NY 490,496[19541). The agreement clearly and unambiguously statea that in "determining a distribution of the property.

. , whether by agreement, mediation or application to

a Court o ~ c o m p e t e n t j u r ~ ~ ~ i(Emphasis added). The agreement contemplates that a c~o~."
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distribution of property may occur by either one of three ways: by mediation or an a g r m e n t or

application to the court. This language does not condition a commencement of any action upon
the occurrence of a mediation within one yaar of the signing of the agreement.

Further, the agreement provides for tho division of the rugs between the parties within "approximately one" year, after the parties each determine their new separate living arrangements.

Parties to a contract may mutually s p e to sliarton the limitations period so long as the period is
reasonable and exprcsely stated (Rudin v Dlsanzu, 202 AD2d 202,608NYS2d 216 [1" Dept
1994); CPLR 5201).

The intent to shorten the limitations period "must be set forth in a clear and

wambiguous manner" (USAUnited Holdings, Inc. v Tse-Peo, Inc., 23 Misc 3d 1114,886 NYS2d

69 [Sup Ct New York County 2 0 1 . H r ,the lanwge of the agreement indicates that the 09) ee

parties intended to accomplish the division of tho rugs not within some rigid time frame, but at an
estimated tima of "approximately one (1) year." The language that follows (which dofendant

counscl curiously omits f o paragraph 3 of his &davit) rm

- "after each party has batter detcrminud
clearly

his or her ncw living amngmemt and ability to maintain the subject personal proper!$'-

evinces an intent of the parties to accomplish the division after each of them suttles in their
mspcctive new post-separation housuholds. Contrary to defendant's contention, the language in

the agreement does not clearly represent an intent to shorten the statute of limitations period to
one-year. The Court notes that in August 2007, more than two years after the parties signed the agcement, plaintiff asked defendant to divide the rugs or their monetary value within the next
sgvtwul months and defendant responded that she would "be glad toppnss things

. . . back fo

[pluintifl and . , , settle up. (Emphasis addad). Thus, defendant's statement undermines her
contention that the parties intendad to 80ttl0 their personal property affairs within the one-year
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period. As it cannot be said that the action b t m - a r d the failure of the parties to mediate i e b r e by the issue of the division of the rugs or their values within one-year of the signing of the

agreement,and dismissal of the action on this ground is denied.`

As to the third came of action for breach of an implied covenant of good faith and fair
dealing, "evexy contract contains an implied obligation

. . . to deal fairly wt the other and to ih

eschew actions which would deprive the other party of the fruits of the agreement" (Miller v

Almquisst, 241 AD2d 18 1 [ 19981; Greenwich Villuge Assocs. v Sulle, 110 AD2d 111 [l p Dapt
19851). Defendant's argument for dismissal is premised on her claim that plaintiff is seeking to

"side step" the express limitatiom of the a p m a n t . Howtvcr, as noted above, the record doas not ostablish that thu parties expressly agreed to a limitations period of one-year. Further,the record raises an isgue of fact as to whcthcr defendant, by expressing willinpeas in her mails' to divide the rugs, notwithstanding the alleged one-year limitation, deliberately led plaintiff to mmnably believe that she was going to fulfill her obligation under the agreement and then later rehsed to do so, Thus, defendant's allugud conduct, in addition to plaintiffs agserhion that it was understood between the parties that they would divido the rugs or their value after they each make new living arrangements and determinations aa to the rugs, which could possibly extend beyond

The Court no- that defendant contends that plaintiff "will argue that the mere rtahg of hia lack of intorart i obtaining the f t e mof furniture docs not m a n that he ulso waived his right `to equalize any disparities i n n velua with B payment i cash, , . ." (omphie oupplied). While defendant merely argues that plaintiff ia precluded n born asaatting his right to the value of the rugs by f a i l k to timely damand d a t i o n of thio irrrUa, tba Court notea that the evidence docs not aupport the contention that plaintiff relinquished his ownemhip in or right to the rugs or to their value (see dhcussion iqh at page 10).
June 2006 email ("OK" response t plahtif!f`s `Wma frama mora one year plus") and August 2007 amail in o ("let's 5wc out what'a fair and settle up").

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the one-year period, prcsents an issue of fact regarding defendant's compliance with her implied covenant of good faith. Therefore, summaryjudgrmnt on this cause of action is also unwarranted.

Further, as to the fourth cause of action for specific performance, defendant failed to
demonstrate, as a matter of law, that plaintiff relinquished his ownemhip in or right to the rugs or to their valua6 A waiver of a contractual right "may be ustablishcd by aflirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage

. . . and must be based

on a clear manifestation of intent to relinquish a contractual protection" (Fundamentul Purrfolio

Advisors, Inc. v TocquevilleAsset Mgt., L.P.,7 NY3d 96, 104, 8 17 NYS2d 606 [2006]; also see

Bucktter v Buckner, 158 AD2d 299 [ 1'` Dept 19901 (issue of fact existed as to whether son's fulltime employment and residence in his own apartment were "amancipation evcnts" under the

separation agreement and whether defendant father's acquiescence in those actions constituted a
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waiver of his rights under the agmmcnt)). In June 2006,when defendant sent plaintiff EUI email asking whether he wanted any of the rugs, plaintiff responded that he did not need the rugs "just right now; the time frame is more one year plus." This statement indicates his indecisiveness as to
the rugs. In plaintiffs October 2006 amail, he replied that hu "probably"did not need the rugs,

demonstrating again his indecisiveness as to the rugs. Finally, in August 2007, plaintiff asked defendant to divide the rugs or their monetary value. All of these statements raise an issue of fact

as to whether plaintiff waived his right to the rugs or their value. In any event, the partias' ancement requires any modification to be i Writing and formally executed. Thus, the court is not n
persuaded that plaintiffs "mere failure to atisart IL right" in his email to the value of the rugs

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constitutes a waiver (Rubin v Rubin, supra, st 186; Buckner v Buckner, at 300;Slatt v Slatt, supra, at 967). Finally, apart f o arguing that all of the causes of action are time barrod, defundant rm submits no basis for dismissal of the fifth cause of action for attorneys' ftcs. Therefore, dismissal of this caw8 of action is denied. Consequently, defendant in this cmu failed to establish that plaintiffs cawts of action

have no merit, sufficient to warrant the court, as a matter of law, to direct judgment in her favor.
Conclusion

Accordingly, it is haroby

ORDERED that the motion by defendant Judith Kelman, aka Judith Scardino for
summary judgment pursuant to CPLR g3212 dismissing the complaint by plaintiff Ivan Wolff is

denied in its entirety; and it is M e r

ORDERED that defendant shall sew0 a copy of this order with notice of entry upon
plaintiff within 20 days of entry; and it is fhther

ORDERED that the parties appear for a preliminary conference on March 30,2010.
This constitutes the decision and order of tho Court.

Dated: February 8,2010

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