Foley v. Foley

190 A.D.3d 953

141 N.Y.S.3d 75

Teresa FOLEY, appellant-respondent,

v.Benjamin FOLEY, etc., et al., respondents-appellants.

2018-14501

Index No. 12817/11

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 9, 2020

January 27, 2021

Lenihan & Associates, LLC, White Plains, N.Y. (James Michael Lenihan of counsel), for appellant-respondent.

Benjamin Foley (Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. [Joel M. Simon], of counsel), respondent-appellant pro se and for respondents-appellants John Andrew Foley and Estate of Michael Foley.

WILLIAM F. MASTRO, A.P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, PAUL WOOTEN, JJ.

DECISION & ORDER

In a matrimonial action, the plaintiff appeals, and the defendants cross-appeal, from an order of the Supreme Court, Westchester County (Lewis J. Lubell, J.), dated August 23, 2018. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was to reject so much of a referee's report and recommendation as recommended denying the plaintiff's motion, inter alia, to enforce a stipulation of settlement, and confirmed that portion of the report and recommendation.

ORDERED that the cross appeal is dismissed as abandoned; and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the plaintiff's motion which was to reject so much of a referee's report and recommendation as recommended denying the plaintiff's motion, inter alia, to enforce a stipulation of settlement is granted, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In this matrimonial action, the plaintiff and the defendant John Andrew Foley, the guardian for the plaintiff's former husband, entered into a stipulation of settlement dated October 7, 2013, which, among other things, provided that the husband would pay to the plaintiff $600,000 as a distributive award, $75,000 of which was to be paid within 30 days, and $525,000 of which was to be paid by December 31, 2013. The stipulation of settlement was incorporated, but not merged, into a judgment of divorce dated January 9, 2014. The husband died in April 2014, and John Andrew Foley and the defendant Benjamin Foley were named co-executors of the estate.

In July 2015, the plaintiff made a post-judgment motion, inter alia, to substitute the husband's estate and co-executors John Andrew Foley and Benjamin Foley as defendants for the purpose of enforcing the stipulation of settlement, contending that the $525,000 distributive award balance was never paid. In an order dated October 28, 2015, the Supreme Court, among other things, granted that branch of the plaintiff's motion which was to amend the caption and to substitute the estate and the co-executors as defendants. That portion of the order was affirmed by this Court (see Foley v. Foley, 151 A.D.3d 1018, 54 N.Y.S.3d 593 ).

Subsequently, the plaintiff moved, inter alia, for an order enforcing the stipulation of settlement and directing the defendants to pay the outstanding balance of $525,000, plus interest, as well as certain incidental and consequential damages (hereinafter the underlying motion). A Special Referee assigned to hear and report on the matter...