Brancoveanu v. Brancoveanu

Mar 3, 2003
Versions:303 A.D.2d 349
755 N.Y.S.2d 650

—In a matrimonial action in which the parties were divorced by judgment dated April 30, 1987, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Dorsa, J.), dated June 6, 2002, as denied those branches of his motion which were to award him a 40% interest in the marital residence and for the return of a certain motor vehicle.

Ordered that the order is affirmed insofar as appealed from, without costs and disbursements.

In accordance with the terms of the judgment of divorce dated April 30, 1987, the defendant, as custodial parent, was entitled to exclusive use and occupancy of the marital residence until the children reached the age of 21 years or were *350sooner emancipated. Thereafter, the residence was to be sold and the proceeds were to be divided 60% to the defendant and 40% to the plaintiff. In May 1999 the parties executed a deed transferring a 60% interest in the residence to the defendant, and the remaining 40% interest was divided equally between the party’s two children.

In light of this conveyance, the Supreme Court properly denied that branch of the plaintiffs motion which was for an award of a 40% interest in the marital residence. The plaintiff voluntarily relinquished his right to the property, and his unsupported conclusory allegations of fraud are insufficient to overturn the deed (see Resnik v Norrell Corp., 269 AD2d 438 [2000]; MDJR Enters, v LaTorre, 268 AD2d 509, 510 [2000]; Capital Circulation Corp. v Gallop Leasing Corp., 248 AD2d 578 [1998]).

Further, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs motion which was for the return of a certain motor vehicle since there was evidence of an identical claim pending before another court (see CPLR 3211 [a] [4]; Whitney v Whitney, 57 NY2d 731 [1982]; DeBerardine v Rockland Elec. Co., 137 AD2d 647, 649 [1988]).

The plaintiffs remaining contentions are unpreserved for appellate review. Feuerstein, J.P., Smith, McGinity and Cozier, JJ., concur.