Darius v. DariusDarius v. Darius
(1) Cross appeals from an order of the Supreme Court (Dawson, J.), entered March 6, 1997 in Warren County, which, inter alia, denied plaintiff’s motion for summary judgment and partially denied a cross motion by defendant Deborah A. Bassett Darius for summary judgment, and (2) appeal from an order of said court, entered April 4, 1997 in Warren County, which, inter alia, partially denied said defendant’s motion to vacate an injunction.
Plaintiff was a longtime friend of Harold Bassett (hereinafter decedent), who died on January 31, 1993. Decedent’s wife, defendant Deborah A. Bassett Darius (hereinafter defendant), was appointed executor of his estate which was ultimately valued at approximately $6 million including his business, H.B. Slate Company.
On April 20, 1993, the parties met with Pontiff at which time defendant gave plaintiff a general power of attorney. Thereafter, several bank accounts were opened either jointly or in their individual names listing the same assets. On June 9, 1993, the parties entered into an employment agreement whereby H.B. Slate would employ plaintiff subject to certain terms and provisions regarding termination (hereinafter the employment contract). On June 30, 1993, the parties entered into a postnuptial agreement which provided, inter alia, that the real and personal property owned by the parties jointly or separately would be held equally by the parties as joint tenants or tenants in common.
On November 4, 1993, plaintiff commenced this action seeking, inter alia, a judgment of divorce on the grounds of cruel and inhuman treatment and adultery, as well as specific performance of both the postnuptial agreement and employment contract. Defendant, individually and in her capacity as executor, served an amended answer and counterclaimed for, inter alia, a judgment of divorce on the basis of adultery and cruel and inhuman treatment, an annulment and rescission of the postnuptial agreement and employment contract.
Both parties moved for summary judgment. Supreme Court denied all motions except that portion of defendant’s cross motion declaring the parties’ postnuptial agreement null and void and for an order precluding plaintiff from using the August 2, 1996 deposition transcript of defendant’s treating psychologist, Martin Marrazo, conducted in the absence of defendant’s counsel. Supreme Court also granted partial summary judgment to defendant directing plaintiff to return moneys owed. Both parties appeal.
Prior to plaintiff’s motion for summary judgment, plaintiff sought and obtained an order enjoining defendant from transferring or encumbering the different bank accounts
Addressing first Supreme Court’s determination that the postnuptial agreement between these parties was null and void, we find no error. The clear and unambiguous language of the postnuptial agreement provided that: “Property, both real and personal, now owned by either of the parties jointly or separately as set forth in the attached schedules, as well as any and all assets acquired by [defendant] from the Estate of [decedent], shall be held, used, and owned by them as joint tenants, or as tenants in common in equal interest during their lives.” Since such agreement was premised upon specifically identifiable real and personal property which was never included therein, Supreme Court found that an “essential term” was omitted, thus precluding enforcement (see, Sagan v Sagan,
As to the suppression of the deposition testimony of defendant’s treating psychologist, we note that a predominant issue in this litigation concerned defendant’s mental health from the time of decedent’s illness through her subsequent marriage to plaintiff. Since such deposition testimony was taken after plaintiffs counsel received notice that defendant’s counsel was unable to attend and after Supreme Court rendered a directive that no such deposition should take place on the scheduled date, we find no error (see, CPLR 3103 [c]; see also, CPLR 3104 [a]; Cippitelli v Town of Niskayuna,
In further reviewing the motions made by each of these parties seeking a dissolution of this marriage upon the grounds of adultery, cruel and inhuman treatment or an annulment, we agree with Supreme Court that neither party adequately sustained their burden on the issues raised to warrant a summary determination at this juncture (see, Domestic Relations Law § 144; Zuckerman v City of New York,
Finally, in light of Supreme Court’s determination, affirmed here, that the postnuptial agreement is null and void, defendant correctly contends that the court should have permitted the disbursement of account No. 663-08118-15-304—the account listed under defendant’s name as executor of the estate—and should have thereafter granted her subsequent motion to vacate the preliminary injunction and direct the distribution of the other three accounts listed in the name of the estate.
As to all remaining contentions, including those pertaining to discovery and the validity of the employment contract, we find that Supreme Court properly assessed such issues for the reasons therein stated.
Accordingly, we reverse so much of Supreme Court’s order entered March 6, 1997 as granted defendant partial summary judgment for the return of $40,000 and as denied defendant’s cross motion to vacate the injunction of January 23, 1995 with respect to account No. 663-08118-15-304. With respect to Supreme Court’s order entered April 4, 1997 which denied defendant’s motion to vacate the injunction of January 23, 1995 with respect to the three remaining accounts listed in the name of the estate, we hereby grant said motion.
Notes
This Court granted defendant’s motion to supplement the record on appeal and to consolidate the two appeals and denied that portion of a motion made to strike part of the record.