Braunstein v. BraunsteinBraunstein v. Braunstein
3 AMY BRAUNSTEIN, Respondent-Appellant, v DAVID J. BRAUNSTEIN, Appellant-Respondent. (Action No. 1.) SUSAN ANN STARK et al., Appellants, v JOLA SALES CORPORATION et al., Respondents. (Action No. 2.) [18 NYS3d 73]—
In an action for a divorce and ancillary relief (action No. 1), and a related action, inter alia, for breach of contract (action No. 2), which were joined for trial, the defendant in action No. 1, David J. Braunstein, appeals from stated portions of a judgment of divorce of the Supreme Court, Suffolk County (Cohen, J.), entered April 17, 2012, in action No. 1, upon a decision of the same court, dated November 30, 2011, made after a nonjury trial, and upon an order of the same court dated January 17, 2012, granting the motion of Amy Braunstein, the plaintiff in action No. 1, pursuant to
Ordered that the cross appeal from the order dated March 28, 2013, is dismissed, without costs or disbursements, on the ground that it was superseded by the resettled judgment; and it is further,
Ordered that, on the Court‘s own motion, the notice of appeal by Susan Ann Stark and the Joseph Braunstein Revocable Trust, the plaintiffs in action No. 2, dated February 13, 2012, is deemed to be a notice of appeal from the judgment entered February 10, 2012, in action No. 2 (see
Ordered that the resettled judgment entered May 13, 2013, is modified, on the law, (1) by, upon the granting of that branch of the motion of Amy Braunstein, the plaintiff in action No. 1, which was to resettle the judgment of divorce to add a certain provision, deleting the seventeenth decretal paragraph thereof under the heading “Net Proceeds of Sale of 10 Connor Lane,” and substituting therefor a decretal paragraph stating:
“Ordered AND ADJUDGED that as a matter of equitable distribution, the plaintiff (Amy Braunstein) is entitled to twenty-five percent (25%) of the total net proceeds (i.e., amount equal to fifty percent [50%] of the marital portion of the total net proceeds) from the ultimate sale of the real property located at 10 Connor Lane, Deer Park, New York, 11729, in an arm‘s length, good faith transaction for fair value,”
and (2) by, upon the granting of that branch of the motion of Amy Braunstein, the plaintiff in action No. 1, which was for a preliminary injunction, adding thereto a provision “[d]irecting that twenty-five percent (25%) of the total net proceeds (i.e., an amount equal to fifty percent [50%] of the marital portion of the total net proceeds) from any sale of the real property located at 10 Connor Lane, Deer Park, New York, 11729, be held in escrow by the plaintiff‘s counsel, and that such proceeds shall not be released absent written order from this court or written agreement between the parties“; as so modified, the resettled judgment is affirmed insofar as appealed from, without costs or disbursements, and the order dated March 28, 2013, is modified accordingly; and it is further,
Ordered that the judgment entered February 10, 2012, in action No. 2, is affirmed, without costs or disbursements.
Amy Braunstein (hereinafter Amy) and David J. Braunstein (hereinafter David) were married in 1980. In February 2008, Amy commenced an action for a divorce and ancillary relief (action No. 1; hereinafter the divorce action). Marital property
In November 2007, David vacated the marital residence. In July 2008, Jola Corp. stopped doing business, allegedly discarding as trash Magic Moment‘s inventory consisting of 13 million greeting cards and selling off some of its manufacturing equipment to a family relative who operated a greeting card business in Florida. In November 2008, David relocated to Florida and thereafter began working for that relative. Also in November 2008, Connor Lane Corp. sold the commercial property. In February 2009, Joseph and the Joseph Braunstein Revocable Trust (hereinafter the trust) commenced an action against Jola Corp. and Connor Lane Corp., as well as against David, Amy, and David‘s counsel, asserting breach of contract and tortious interference with contract, and seeking declaratory relief (action No. 2; hereinafter the contract action). The trust claimed that Joseph had made loans to Jola Corp. in 2002 through 2007 and that, despite a loan agreement entered into in November 2007 and signed by David as president of Jola Corp. (hereinafter the loan agreement), the loans were never repaid. The complaint further alleged that the loan agreement was secured by David‘s interest in Connor Lane Corp. Following Joseph‘s death in 2010, Susan Ann Stark, as administratrix of Joseph‘s estate (hereinafter the estate), was substituted as a plaintiff in the contract action.
The divorce action and the contract action were joined for trial. At the joint trial, the Supreme Court first heard testimony relating to the contract action, followed by testimony relating to the divorce action, including expert testimony as to the valuation of Jola Corp. In its decision after trial, the court concluded that it would dismiss the contract action, based on its finding that the plaintiffs failed to satisfy their burden of establishing the existence of a contract, and would issue a declaration that the plaintiffs had no security interest in the commercial property.
With respect to the divorce action, the Supreme Court awarded Amy maintenance for a period of seven years and equitably
On appeal, David challenges the Supreme Court‘s determination in the divorce action with respect to the amount and duration of maintenance awarded and the equitable distribution of the marital property, especially as it relates to the valuation of Jola Corp. and a net operating loss carryover claimed by David on his personal income tax returns. David additionally argues that the court‘s determination failed to properly consider insurance claim checks allegedly converted by Amy, Amy‘s alleged waste of marital assets in refusing to cooperate in the sale of the couple‘s Florida condominium, and certain credit card and loan liabilities which he maintains should have been equally divided.
“The trial court is vested with broad discretion in making an equitable distribution of marital property . . . and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed” (Safi v Safi, 94 AD3d 737, 737 [2012] [internal quotation marks and citations omitted]; see Halley-Boyce v Boyce, 108 AD3d 503, 504 [2013]). “‘[T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts‘” (Giokas v Giokas, 73 AD3d 688, 688 [2010], quoting Wortman v Wortman, 11 AD3d 604, 606 [2004]).
The Supreme Court properly weighed the relevant statutory factors (see
On this record, no basis exists to disturb the Supreme Court‘s finding as to the valuation of David‘s interest in Jola Corp. (see Peritore v Peritore, 66 AD3d at 750; Sieger v Sieger, 51 AD3d 1004 [2008]; Ivani v Ivani, 303 AD2d 639 [2003]; Rosenberg v Rosenberg, 155 AD2d 428 [1989]).
Contrary to David‘s contention, the Supreme Court‘s determination to award Amy a credit in the sum of $43,201.78 based on the net operating loss carryover of $514,307 claimed by David on his 2009 tax return from the sale of Jola Corp. and an effective tax rate of 28% is supported by the evidence. As the Court of Appeals has made clear, “[a] party to litigation may not take a position contrary to a position taken in an income tax return” (Mahoney-Buntzman v Buntzman, 12 NY3d 415, 422 [2009]; see Livathinos v Vaughan, 121 AD3d 485 [2014]). In addition, the record supports the court‘s decision to deem David‘s annual income to be $125,000 “based on actual and imputed sources” (see Turco v Turco, 117 AD3d at 722-723; Maggi v Maggi, 303 AD2d 650 [2003]; cf. Rosenberg v Rosenberg, 44 AD3d 1022 [2007]).
During the pendency of the divorce action, David, through Connor Lane Corp., sold the commercial property to a third-party purchaser for $1,575,000, and took back a purchase money mortgage payable in monthly installments of $11,325.24. As a consequence, the parties entered into a stipulation agreeing, inter alia, that 50% of the net sale proceeds would be held in escrow. When the third-party purchaser subsequently defaulted on the mortgage, Connor Lane Corp. commenced an action to foreclose the mortgage. While the foreclosure action was pending, the Supreme Court conducted a trial with respect to Amy‘s and David‘s equitable distribution claims. The court determined that Amy was entitled to 25% of the net proceeds of any prospective foreclosure sale, based on its conclusion that
Meanwhile, after Connor Lane Corp. made a successful bid of $500 for the commercial property at the foreclosure sale that took place in February 2012, David delivered to Amy a check in the sum of $125, representing her share of the net sale proceeds from the foreclosure sale. Amy, in turn, moved pursuant to
The Supreme Court should have amended the divorce judgment with respect to Amy‘s interest in the commercial property in order to effect the clear intent of the court and the parties as expressed at the trial resolving issues of equitable distribution (see
David‘s remaining contentions are without merit.
On their appeal from the judgment entered February 10, 2012, in the contract action, the estate and the trust (hereinafter together the estate plaintiffs) principally argue that the loan agreement was a valid contract and there existed an enforceable security interest in the real estate holdings of Connor Lane Corp. The estate plaintiffs also contend that the Supreme Court improperly dismissed the cause of action asserted against Amy for tortious interference with a contract.
“Generally, a party alleging a breach of contract must ‘demonstrate the existence of a . . . contract reflecting the terms and conditions of their . . . purported agreement‘” (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 181-182 [2011], quoting American-European Art Assoc. v Trend Galleries, 227 AD2d 170, 171 [1996]; see Canzona v Atanasio, 118 AD3d 837, 838-839 [2014]). “It is axiomatic that ‘[w]ithout [an] agreement . . .
Contrary to the contention of the estate plaintiffs, there is no reason to disturb the Supreme Court‘s determination (see Siebert v Dermigny, 60 AD3d at 526; Milnes v Milnes, 50 AD3d 750 [2008]). Check No. 1220, dated August 5, 2002, contains no notation that it was a loan, and does not otherwise indicate its purpose (see Schaffe v SimmsParris, 82 AD3d at 868). The same holds true for check No. 1015, dated December 10, 2007. David, who drafted the loan agreement and conceded that it was in his own financial interest to have the loans repaid, offered only conclusory testimony that the sums were used to cover Jola Corp.‘s operating expenses (see Skiadas v Terovolas, 219 AD2d 635 [1995]; cf. Levine v Levine, 24 AD3d 625 [2005]). Inasmuch as the estate plaintiffs failed to satisfy their burden of demonstrating the existence of a valid loan agreement, the provision therein giving a security interest in David‘s interest in the commercial property was without effect. Similarly, the cause of action to recover damages for tortious interference with a contract was properly dismissed for failure to establish the existence of a valid contract (see Robert Wayne Distribs. v Noonan, 204 AD2d 421 [1994]).
The estate plaintiffs’ remaining contentions are without merit. Mastro, J.P., Roman, Sgroi and Barros, JJ., concur.