Partlow v. Kolupa

69 N.Y.2d 927 | NY | 1987

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

This is an action for conversion in which plaintiff seeks to recover silverware, or compensatory damages, and punitive damages from her former husband. She originally asserted the claim in the divorce action against him but in consideration of her husband withdrawing his answer and demand for a jury trial, and as part of the resolution of several other disputed matters, plaintiff executed a written stipulation with defendant in which she withdrew the conversion claim. The withdrawal was "without prejudice to the assertion by plaintiff of such claim and without prejudice to the assertion by defendant of any defense he may make against such claim of plaintiff in a subsequent trial upon the issues of 'equitable distribution’ should it be determined by the Court that such claim of plaintiff is properly maintainable at such trial.” After execution of the stipulation, defendant withdrew his answer, the court granted plaintiff a divorce by default and the parties proceeded to trial on the issue of equitable distribution to settle their property rights.

It is evident that the stipulation preserved plaintiff’s right to litigate the conversion claim only if she asserted it at the equitable distribution phase of the divorce action. Inasmuch as she did not present it to the court at that time, the present action is barred.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Alexander taking no part.

Order affirmed, with costs, in a memorandum.