MICHAEL A. SERAO, plf-ap, v. JONATHAN BENCH-SERAO, def-res

3836. MICHAEL A. SERAO, plf-ap, v. JONATHAN BENCH-SERAO, def-res — Eric Ole Thorsen, New City, for ap — Brian M. DeLaurentis, P.C., New York (Brian M. DeLaurentis of counsel), for res — Order, Supreme Court, New York County (Lori S. Sattler, J.), entered on or about July 28, 2016, which, insofar as appealed from as limited by the briefs, granted defendant's motion to vacate the divorce judgment solely to the extent necessary to resolve issues of equitable distribution, and denied plaintiff's cross motion to dismiss defendant's forgery claim, unanimously affirmed, without costs.

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3836. MICHAEL A. SERAO, plf-ap, v. JONATHAN BENCH-SERAO, def-res — Eric Ole Thorsen, New City, for ap — Brian M. DeLaurentis, P.C., New York (Brian M. DeLaurentis of counsel), for res — Order, Supreme Court, New York County (Lori S. Sattler, J.), entered on or about July 28, 2016, which, insofar as appealed from as limited by the briefs, granted defendant’s motion to vacate the divorce judgment solely to the extent necessary to resolve issues of equitable distribution, and denied plaintiff’s cross motion to dismiss defendant’s forgery claim, unanimously affirmed, without costs.

Defendant established prima facie that the judgment of divorce must be vacated because it is devoid of any provision addressing the equitable distribution of the parties’ marital assets or debts (see Domestic Relations Law §236[B][5][a]; Wong v. Wong, 300 AD2d 473 [2d Dept 2002]). In opposition, plaintiff argued that the parties had voluntarily agreed to distribute all assets and debts, but he failed to present a written agreement to opt out of the equitable distribution provisions sufficient to satisfy the formal requirements of Domestic Relations Law §236(B)(3) (see Domestic Relations Law §236[B][5][a]; see also CPLR 2104; General Obligations Law §5-703). Accordingly, the judgment was correctly vacated to the extent necessary to determine equitable distribution (see Conti v. Conti, 199 AD2d 985 [4th Dept 1993]).

MICHAEL A. SERAO, plf-ap, v. JONATHAN BENCH-SERAO, def-res

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