S.K. v. S.K.

The following e-filed papers read herein: NYSCEF Doc Nos.: Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed             191-235, 237-238, 239, 244 Opposing Affidavits (Affirmations)     240-243, 249, 262 Transcript of June 27, 2022 Oral Argument:       264 Upon the foregoing papers, in this action by plaintiff S.K. (plaintiff) against defendant S.K. (defendant) for divorce and ancillary relief, plaintiff moves, post-judgment, by order to show cause, under motion sequence number 23, for an order: (1) directing defendant to pay him the sum of $2,709,610.44,¹ representing the total amount of his interests in the former marital residence, the adjustment for the 20th Avenue property, and Ditmas Realty LLC, plus statutory interest from the date of the Decision After Trial dated May 3, 2018, pursuant to CPLR §§5002 and 5004; (2) directing defendant to provide him with the appropriate real estate documents, within 30 days, to transfer the former marital residence and Ditmas Realty LLC out of his name; (3) pursuant to the decision and order of the court dated May 29, 2020, declaring that the value of the Aviva life insurance policy, which was already distributed, will not be redistributed by a Qualified Domestic Relations Order (QDRO); and (4) pursuant to Domestic Relations Law §237, granting him an award of counsel fees in the minimum sum of $25,000 for the legal services rendered to him to enforce and implement the terms of the Appellate Division decision and order. Plaintiff, in his order to show cause, also requests that the court execute a proposed Amended Judgment of Divorce submitted by him as NYSCEF Doc No. 196, which modifies the Judgment of Divorce dated December 11, 2018 in accordance with the decision and order dated February 9, 2022 rendered by the Appellate Division, Second Department. Defendant cross-moves, under motion sequence number 24, for an order: (1) directing plaintiff to immediately comply with the QDRO served upon him as plan administrator of the Madison Maidens Defined Benefit Plan on or about March 4, 2022, and granting her, on the basis of plaintiff’s delay in complying with transferring the sum due to her under the Madison Maidens QDRO on a timely basis, the greater of: (a) the sum of $1,045,456 that the Plan actuary, Improved Funding Techniques, Inc. (Improved Funding) determined was due to her as of about March 31, 2022 (which is the date approximately four weeks after which the QDRO was presented to plaintiff for 2 of 24 May 3, 2018, pursuant to CPLR §§5002 and 5004; (2) directing defendant to provide him with the appropriate real estate documents, within 30 days, to transfer the former marital residence and Ditmas Realty LLC out of his name; (3) pursuant to the decision and order of the court dated May 29, 2020, declaring that the value of the Aviva life insurance policy, which was already distributed, will not be redistributed by a Qualified Domestic Relations Order (QDRO); and (4) pursuant to Domestic Relations Law §237, granting him an award of counsel fees in the minimum sum of $25,000 for the legal services rendered to him to enforce and implement the terms of the Appellate Division decision and order. Plaintiff, in his order to show cause, also requests that the court execute a proposed Amended Judgment of Divorce submitted by him as NYSCEF Doc No. 196, which modifies the Judgment of Divorce dated December 11, 2018 in accordance with the decision and order dated February 9, 2022 rendered by the Appellate Division, Second Department. Defendant cross-moves, under motion sequence number 24, for an order: (1) directing plaintiff to immediately comply with the QDRO served upon him as plan administrator of the Madison Maidens Defined Benefit Plan on or about March 4, 2022, and granting her, on the basis of plaintiff’s delay in complying with transferring the sum due to her under the Madison Maidens QDRO on a timely basis, the greater of: (a) the sum of $1,045,456 that the Plan actuary, Improved Funding Techniques, Inc. (Improved Funding) determined was due to her as of about March 31, 2022 (which is the date approximately four weeks after which the QDRO was presented to plaintiff for administration as the plan administrator), or (b) the amount that becomes due to her on the date of actual transfer; (2) granting her, pursuant to Domestic Relations Law §237 (b) and §238, an award of counsel fees in the amount of $25,000 for the legal services rendered to her to oppose plaintiff’s motion and to prosecute her cross motion, both of which, she claims, were solely necessitated by plaintiff’s advancement of legally unsupportable claims; (3) assessing costs and sanctions in the amount of $10,000, pursuant to 22 NYCRR 130-1.1, against plaintiff for having frivolously brought this motion which, she claims, has no merit under the law and makes no reasonable case for extending the law; and (4) directing plaintiff to execute documents effectuating the transfer of the former marital residence and Ditmas Realty LLC from their joint names into her sole name and to turn over all corporate books and records necessary to perfect said transaction, within 10 days, to be held in escrow, pending payment by her of the offsetting payment to be determined by the court, pursuant to plaintiff’s motion and her cross motion, to enable her to obtain financing or effectuate the sale of these properties in order to fund her obligation to make the offsetting payment, and allowing 180 days for her to obtain necessary financing and/or to liquidate property sufficient to fund the offsetting payment. Facts and Procedural Background On January 8, 2009, plaintiff commenced this action against defendant for a divorce and ancillary relief. The court conducted a nonjury trial as to equitable distribution, maintenance, and child support. The trial took place over 45 nonconsecutive days between May 9, 2011 and May 15, 2014. The court, thereafter, issued a Decision After Trial dated May 3, 2018 (NYSCEF Doc No. 198). A Judgment of Divorce, dated December 11, 2018, was entered upon the Decision After Trial (NYSCEF Doc No. 199). In response to post-judgment litigation, the court rendered a decision and order dated May 29, 2020 (NYSCEF Doc No. 200) and a decision and order dated April 12, 2021 (NYSCEF Doc No. 201), which clarified the Decision After Trial. Among the properties equitably distributed by the court were the former marital residence; Ditmas Realty LLC; property located in Deal, New Jersey (the Deal property), and property located in Brooklyn, New York (the 20th Avenue property). Title to the former marital residence was held jointly by the parties, and the court directed that title to it be transferred to defendant’s sole name with plaintiff being paid the sum of $1,637,500 for his 50 percent marital interest in it. Title to Ditmas Realty LLC and property (the Ditmas Avenue property) for which Ditmas Realty LLC was formed, was held in both parties’ names. The court awarded defendant title to the Ditmas Realty LLC and the Ditmas Avenue property and awarded plaintiff the sum of $532,294.27 for his interest in this asset. The court found that the 20th Avenue property was marital property, that plaintiff would retain the 20th Avenue property, and that plaintiff was required to pay defendant for her 50 percent share of the 20th Avenue property in the amount of $472,500. Title to the Deal property, which was plaintiff’s separate property, was held by plaintiff. The court awarded defendant the sum of $1,190,301.18 for her contributions to the appreciation in value of the Deal property. The court further awarded defendant the sum of $234,689.82, which was 50 percent of the amount of the principal paid down by plaintiff on a mortgage on the Deal property with marital funds. The court also awarded defendant 50 percent of the cash surrender value of plaintiff’s Aviva life insurance policy in the amount of $70,321.50. In addition, the court awarded defendant a 50 percent share of the marital portion of his Madison Maidens Defined Benefit Plan pursuant to the formula set forth in Majauskas v. Majauskas (61 NY2d 418 [1984]). Title to the 20th Avenue property was transferred to plaintiff upon his payment of $472,500 to defendant. Plaintiff appealed portions of the Judgment of Divorce to the Appellate Division, Second Department. Title to the former marital residence and title to Ditmas Realty LLC and the Ditmas Avenue property were not transferred nor were the payments made by defendant for such transfers due to plaintiff’s motion for a stay pending such appeal, which was granted by the Appellate Division. Plaintiff also did not pay defendant the amounts owed to her for her interest in the Deal property. On February 9, 2022, the Appellate Division, Second Department, rendered a decision and order, which affirmed in part and modified in part the Judgment of Divorce (Kattan v. Kattan, 202 AD3d 771, 772-773 [2d Dept 2022], lv denied 38 NY3d 913 [2022]). Specifically, the Appellate Division, Second Department, modified the Judgment of Divorce by: (1) deleting the provision thereof awarding plaintiff the sum of $1,637,500 for his interest in the former marital residence, and substituting therefor a provision awarding plaintiff the sum of $2,133,208.27 for his interest in the former marital residence; (2) deleting the provision thereof awarding defendant the sum of $1,190,301.18 for her contributions to the appreciation in value of plaintiff’s separate property in Deal, New Jersey, i.e., the Deal property, and substituting therefor a provision awarding defendant the sum of $595,150.59 for her contributions to the appreciation in value of the Deal property; and (3) deleting the provision thereof awarding defendant the sum of $472,500 for her interest in the 20th Avenue, and substituting therefor a provision awarding defendant $428,492.50 for her interest in the 20th Avenue property. The Appellate Division, Second Department, otherwise affirmed the Judgment of Divorce insofar as appealed from by plaintiff, including, among other things: (1) the award to defendant of Ditmas Realty LLC and the award to plaintiff of the sum of $532,294.27 for his interest in Ditmas Realty LLC; and (2) the award to defendant of 50 percent of the cash surrender value of the Aviva life insurance policy. On April 20, 2022, plaintiff filed his instant motion (NYSCEF Doc No. 191). On June 17, 2022, defendant filed her instant cross motion (NYSCEF Doc No. 239). Oral argument of plaintiff’s motion and defendant’s cross motion was held on June 27, 2022 (NYSCEF Doc No. 264). The Amount Due The Parties’ Contentions Plaintiff asserts that pursuant to the Appellate Division’s modification, defendant owes him $2,133,208.27 for his interest in the former marital residence. Plaintiff further asserts that he previously paid defendant $472,500 for her interest in the 20th Avenue property, which was transferred to him, and, therefore, pursuant to the modification by the Appellate Division, he only was required to pay defendant $428,492.50. Plaintiff states that defendant, therefore, owes him $44,007.50 ($472,500 minus $428,492.50) for the amount that he overpaid her for her interest in the 20th Avenue property. Plaintiff also asserts that defendant owes him $532,294.27 for his interest in Ditmas Realty LLC pursuant to the affirmance of the Judgment of Divorce by the Appellate Division. All of the aforesaid payments owed to plaintiff by defendant total $2,709,510.04 ($2,133,208.27 plus $44,007.50 plus $532,294.27). Plaintiff requests that defendant be ordered to immediately pay him this $2,709,510.04 sum. Defendant, in opposition, points out that plaintiff, in making his calculation of the amount owed by her to him, failed to provide an offset for the $595,150.59 owed by him to her for her interest in the Deal property which was retained by him (as reduced by the Appellate Division’s modification from the $1,190,301 awarded to her in the Judgment of Divorce). Defendant also points out that the Decision After Trial, at page 40, noted that plaintiff mortgaged the Deal property for $1,000,000 to pay for the construction of the former marital residence, and paid the mortgage payments out of the marital account, and, therefore, ruled that defendant was entitled to recoup 50 percent of the reduction of principal on that mortgage. The court awarded defendant $234,689.82,² which was 50 percent of the amount of principal paid down during the marriage in the amount of $469,397.64 (for a total award of $1,424,991 before the Appellate Division’s modification). Defendant thus asserts that $234,689.82 owed by plaintiff to her is also an offset of the amount owed by her to plaintiff. Defendant contends that the actual sum which she owes plaintiff as the final offsetting payment is $1,879,669.63³ ($2,709,510.04 minus $234,689.82 minus $595,150.59). Discussion Defendant owes plaintiff $2,133,208.27 for his interest in the former marital residence plus $44,007.50 as the difference in the amount paid by plaintiff for the 20th Avenue property and the modified amount required to be paid for this property. Defendant also owes plaintiff $532,294.27 for his interest in Ditmas Realty LLC. In addition, defendant is entitled to an offset of $595,150.59 for her contributions to the appreciation in value of the Deal property which has been retained by plaintiff as his separate property plus $234,689.82, which was 50 percent of the amount of the principal paid down on a mortgage on the Deal property with marital funds. Thus, the total amount owed by defendant to plaintiff, upon subtracting the offsets, equals $1,879,669.63. Post-Decision Interest The Parties’ Contentions Plaintiff contends that defendant owes him post-decision interest from the date the Decision After Trial was rendered up to the date of payment by defendant, pursuant to CPLR 5002. Plaintiff asserts that such interest must be in the amount of the statutory rate of nine percent per annum, pursuant to CPLR 5004, on the entire $2,709,510.04 sum owed to him. Plaintiff argues that such interest is mandatory. Plaintiff asserts that for nearly four years, defendant had possession of the $2,709,610.44 that the Appellate Decision declared was his money. He states that during the time that defendant had possession of these funds, she was able to invest those funds to produce gain (whether interest, dividends, rents, or other forms of income or appreciation), all of which defendant kept. Defendant opposes plaintiff’s request for post-decision interest. Defendant points out that the Decision After Trial distributed marital property on a 50/50 basis after considering separate property credit entitlements, and directed that in certain instances, offsetting payments would be made by one party to the other in consideration for the transfer of joint property to one party or the distribution of separately titled property with a marital component to one or the other party. Defendant argues that, therefore, there was no distributive award to be paid under the Decision After Trial, but rather offsetting payments which were to be made upon the transfers of the properties at issue. Defendant points to the fact that the Decision After Trial, at page 30, provided that she was awarded possession and ownership of the former marital residence and plaintiff was awarded a distribution of 50 percent of the value of the marital residence, or $1,637,500, and directed plaintiff to “take all steps to transfer title of the [former] marital residence to [defendant] within 45 days of the entry of the judgment of divorce.” Defendant notes that the court, thereby, placed the burden of providing the real property transfer documents for execution on plaintiff. Defendant asserts that due to plaintiff’s appeal of the Judgment of Divorce incorporating the Decision After Trial and the granting of a motion by him, in a decision and order dated February 6, 2019 of the Appellate Division, Second Department, for a stay of the transfers and payments related to the former marital residence and Ditmas Realty LLC, no transfer of the former marital residence or Ditmas Realty LLC took place over the past four years and the corresponding payments to be made by her to plaintiff for such transfers likewise did not take place due to the stay. Defendant contends that plaintiff is not entitled to any post-decision interest since the payments by her were only to take place at the time of transfer of the properties at issue and could be offset against amounts plaintiff owed her. Defendant further contends that since it was due to plaintiff’s appeal of the Judgment of Divorce incorporating the Decision After Trial that the transfers and payments were stayed for over four years, plaintiff cannot be awarded any post-decision interest. Defendant also notes that plaintiff, in his brief on appeal, did not request from the Appellate Division an award of post-decision interest with respect to the amounts owed by her in connection with the property transfers. Discussion CPLR 5002 provides as follows: “Interest shall be recovered upon the total sum awarded, including interest to verdict, report or decision, in any action, from the date the verdict was rendered or the report or decision was made to the date of entry of final judgment. The amount of interest shall be computed by the clerk of the court and included in the judgment.” Pursuant to CPLR 5004, such interest is at the rate of nine per centum per annum. Interest on a distributive award is generally granted from the date of the decision until the entry of the judgment (see CPLR 5002; Aloi v. Simoni, 82 AD3d 683, 686 [2d Dept 2011]; Appel v. Appel, 54 AD3d 786, 788 [2d Dept 2008]; Bartek v. Draper, 309 AD2d 825, 826 [2d Dept 2003]; Haymes v. Haymes, 298 AD2d 117, 119 [1st Dept 2002], lv denied 100 NY2d 509 [2003], rearg denied 1 NY3d 546 [2003]), and from the entry of the money judgment to the date of payment (see CPLR 5003; Aloi, 82 AD3d at 686; Gold v. Gold, 276 AD2d 590, 591 [2d Dept 2000]). Here, however, the Decision After Trial did not make any distributive award to plaintiff independent of the transfer of the former marital residence or Ditmar Realty LLC and there was no money judgment entered. Rather, the payment of the amount which defendant owed plaintiff for his share in these properties was inextricably intertwined and contingent upon the transfer of plaintiff’s share in these properties to her. Thus, there was no payment owed which was immediately due at the time of the Decision After Trial upon which interest could accrue. Since plaintiff failed to take the necessary steps to transfer title of the properties to defendant within 45 days of the entry of the Judgment of Divorce as directed in the Decision After Trial, and instead, moved to stay the transfers and payments related to the former marital residence and Ditmas Realty LLC, no payments were due until the stay was no longer in effect and the Appellate Division rendered its decision and order nearly four years after the Decision After Trial was rendered. While plaintiff did not have the benefit of these payments for nearly four years, defendant also did not have the properties transferred to her during this time period. An award of interest backdated to the Decision After Trial would result in a windfall for plaintiff to which he is not entitled. Thus, plaintiff is not entitled to post-decision or postjudgment interest, and his motion, insofar as it seeks such interest, must be denied (see CPLR 5002; Parkoff v. Parkoff, 195 AD3d 936, 941 [2d Dept 2021]). The Aviva Life Insurance Policy and the QDRO The Parties’ Contentions Plaintiff further contends that in the May 29, 2020 decision and order, which clarified portions of the Decision After Trial, the court held that the Aviva life insurance policy and cash surrender value of this policy were not part of the Madison Maidens Defined Benefit Plan “and would not be distributed as part of the QDRO for that plan” (NYSCEF Doc No. 200 at 17). Plaintiff claims that the actuaries at Improved Funding confirmed recently that they determined that the Aviva Life Insurance policy with a cash surrender value of $70,321.50 should be part of the Madison Maidens Defined Benefit Plan. Plaintiff contends that Improved Funding is going to distribute the Aviva life insurance policy again as part of the QDRO for the Madison Maidens Defined Benefit Plan. Plaintiff asserts that defendant already received $70,321.50 for her 50 percent share of the Aviva life insurance policy pursuant to the Decision After Trial. Specifically, plaintiff points out that on April 30, 2021, he paid defendant $285,101.40, which included the $70,321.50 (50 percent of the life insurance policy cash surrender value) awarded to her in the Decision After Trial. Plaintiff has submitted an April 30, 2021 letter to defendant’s attorney, which states that the $285,101.40 payment includes payment to defendant for her share of the Aviva life insurance policy (NYSCEF Doc No. 210 at 1 n 1), and a check dated April 26, 2021 by plaintiff to defendant in the amount of $285,101.40 (NYSCEF Doc No. 211). Plaintiff requests that the court declare that the value of the Aviva life insurance policy, which was already distributed to defendant, not be redistributed via the QDRO. Plaintiff asserts that to award defendant an additional $70,321.50 under the QDRO would result in an impermissible “double dip.” Defendant, in opposition, points out that at page 91 of the Decision After Trial, the court awarded her 50 percent of the cash surrender value of the Aviva whole life insurance policy, and at page 95, the court awarded her a 50 percent share of the marital portion of the Madison Maidens Defined Benefit Plan pursuant to the Majauskas formula. Defendant notes that in the May 29, 2020 decision and order, the court specifically rejected plaintiff’s argument that these awards resulted in a duplicative award. Defendant contends that plaintiff is rearguing this same issue, but again has failed to attach any documentary evidence, such as a written explanation from the Madison Maidens Defined Benefit Plan, to substantiate his assertions. Defendant further points out that the Madison Maidens Defined Benefit Plan has already approved the QDRO (which plaintiff’s counsel drafted) and it was presented to and so-ordered by the court (NYSCEF Doc No. 233). Defendant also notes that plaintiff argued in his brief before the Appellate Division that since defendant was receiving 50 percent of the Madison Maidens Defined Benefit Plan, the court’s additional distribution of the Aviva life insurance policy, owned by that plan, was duplicative and must be reversed (NYSCEF Doc No. 242 at 75). The Appellate Division denied plaintiff this relief and affirmed the court’s Decision After Trial in this respect. Discussion The court, in its May 29, 2020 decision and order (NYSCEF Doc No. 200 at 17), noted that at trial, plaintiff did not argue that the Aviva life insurance policy was part of the Madison Maidens Defined Benefit Plan or that a distribution of 50 percent of the cash surrender value of the Aviva life insurance policy in the amount of $70,321.50 to defendant would be duplicative of a distribution to defendant under the QDRO for the Madison Maidens Defined Benefit Plan. The court further noted that plaintiff failed to substantiate his assertions that an award of defendant’s 50 percent share of the cash surrender value of the Aviva life insurance policy would be duplicative of a QDRO for the Madison Maiden Defined Benefit Plan with any documentary evidence, such as a written explanation from the Madison Maiden Defined Benefit Plan. The court found that without any additional evidence, it could not find that this would be a duplicative equitable distribution award. The court observed that plaintiff was listed as the insured under the Aviva life insurance policy and he would be entitled to obtain the cash surrender value of the policy and that the insurance coverage and the cash surrender value of the policy did not belong to the Madison Maiden Defined Benefit Plan. It found that there was no evidence that the cash surrender value of the Aviva policy would be distributed as part of the QDRO for the Madison Maiden Defined Benefit Plan. As pointed out by defendant, the Appellate Division, on plaintiff’s appeal of this ruling, also rejected plaintiff’s argument that the QDRO would result in a duplication of the award of 50 percent of the cash surrender value of the Aviva life insurance policy. While plaintiff now argues that actuaries at Improved Funding confirmed recently that they determined that the Aviva life insurance policy with its cash surrender value should be part of the Madison Maidens Defined Benefit Plan and that Improved Funding is going to distribute the Aviva Life Insurance policy again as part of the QDRO for the Madison Maidens Defined Benefit Plan, he provides no support for this argument. Plaintiff has submitted a calculation by Steve Bystrom from Improved Funding with respect to the Madison Maidens Defined Benefit Plan (NYSCEF Doc No. 234), which shows that plaintiff’s accrued benefit was based on 4.25 percent of his five-year average of his monthly salary multiplied by his seven years of credited service from January 3, 2001 to January 2, 2008 adjusted to plaintiff’s age on February 28, 2022. Improved Funding calculates plaintiff’s lump sum equivalent of the benefit at age 63 as $2,090,912, and that 50 percent of this amount to defendant, as the Alternate Payee, equals $1,045,456. This calculation was subsequently corrected in May 2022 to provide that plaintiff’s maximum lump sum was $1,966,640, and that 50 percent of this amount to defendant, as the Alternate Payee, equals $983,320 (NYSCEF Doc No. 253). There is no mention of the Aviva life insurance policy. Thus, the court does not find any duplication of the Aviva life insurance policy award in the QDRO. Consequently, the court denies plaintiff’s motion insofar as he requests a declaration that the QDRO consists of a duplicative award of the amount awarded for defendant’s share of his Aviva life insurance policy. Compliance with the QDRO The Parties’ Contentions Defendant, in support of her cross motion, contends that plaintiff has refused to transfer the $1,045,456 (the amount determined by the Plan actuary) (NYSCEF Doc No. 234), to her, pursuant to the QDRO signed by the court. Defendant seeks an order directing plaintiff to comply with the QDRO served upon him as plan administrator on or about March 4, 2022, and further granting her, due to plaintiff’s delay in complying with transferring the sum due to her under the Madison Maidens QDRO on a timely basis, the greater of (i) the $1,045,456 that was due to her as of March 31, 2022 (which was the date approximately four weeks after the QDRO was presented to plaintiff for administration as the plan’s administrator) or (ii) the amount that is calculated to be due to her on the actual date of transfer. Plaintiff, in opposition, asserts that the delay was caused by erroneous calculations by Improved Funding. Discussion Defendant, in seeking an order requiring plaintiff to comply with the QDRO, asserts that plaintiff has delayed in transferring the funds due to her under the QDRO. Plaintiff asserts that the delay was caused by erroneous calculations by Improved Funding, which have now been corrected from $1,045,456 to $983,320 as the amount to be paid to defendant. Plaintiff has submitted the corrected calculation (NYSCEF Doc No. 253). Thus, plaintiff is directed to transfer the $983,320 sum due to defendant under the Madison Maidens QDRO. Proposed Amended Judgment of Divorce The Parties’ Contentions Plaintiff contends that as a result of the modifications to the underlying Decision After Trial by the Appellate Division, the court should execute an Amended Judgment of Divorce, which modifies the Judgment of Divorce in accordance with the Appellate Division’s decision and order. Plaintiff has submitted a proposed Amended Judgment of Divorce for the court to sign, which provides, among other things, that the marital property of the parties shall be distributed in accordance with the terms of the Decision After Trial, as amended by the decision from the Appellate Division, Second Department, on payment of the sums awarded by the Appellate Division with statutory interest from the date of decision to the date of payment (NYSCEF Doc No. 196). Defendant contends that there is absolutely no need or legal basis for plaintiff’s request for an Amended Judgment of Divorce. Defendant asserts that the Appellate Division decision and order has already effectuated the result of its modification and affirmance when it held: “ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion…as so modified, the judgment of divorce is affirmed insofar as appealed” (Kattan, 202 AD3d at 772-773). Defendant argues that plaintiff’s request for an Amended Judgment of Divorce is, therefore, superfluous, and that the only possible reason for seeking it by plaintiff was in order to deceptively attempt to bootstrap his meritless demand for retroactive statutory interest onto this false need for an amended judgment. Discussion The court denies plaintiff’s motion insofar as he seeks that this court sign his proposed Amended Judgment of Divorce. There is no legal basis for plaintiff’s request for an Amended Judgment of Divorce. The Appellate Division did not remand this matter to the court for an Amended Judgment of Divorce. Rather, the decision and order of the Appellate Division resulted in the modification and affirmance of the Judgment of Divorce (which incorporated the terms of the Decision After Trial) and no Amended Judgment of Divorce is necessary. Plaintiff’s Counsel Fees The Parties’ Contentions Plaintiff argues that he should be awarded counsel fees pursuant to Domestic Relations Law §237 (c). He maintains that defendant has willfully failed to comply with the Appellate Division’s decision and order by not paying the amounts owed by her to him. Plaintiff asserts that he has incurred approximately $14,000 in legal fees for the services rendered through March 31, 2022 by his counsel in enforcing the obligations addressed in his motion. Plaintiff has submitted his retainer agreement, dated August 23, 2019, with Blank Rome for legal services in connection with post-judgment financial issues (NYSCEF Doc No. 212). Plaintiff has also submitted copies of Blank Rome’s redacted invoices (NYSCEF Doc No. 213). Brett S. Ward, Esq., a partner with Blank Rome LLP, has submitted his affirmation, in which he describes the legal services performed on plaintiff’s behalf. He states that such legal services included discussions between his office and plaintiff concerning defendant’s refusal to pay, review of motion papers and correspondence, correspondence with defendant and opposing counsel (during the periods that defendant was represented by counsel) either responding to issues or trying to resolve outstanding issues, legal research, and drafting and submission of the instant application. In addition, Mr. Ward, Esq. anticipated that further fees would be incurred by plaintiff for the drafting of reply papers (although no reply papers were submitted) and for a court appearance (which took place) for the argument of plaintiff’s motion. He sets forth his qualifications, as well as the qualifications of Emily S. Rosenthal, Esq., an associate with Blank Rome, who assisted in this matter. He requests that plaintiff be granted an award of counsel fees in the minimum sum of $25,000. In plaintiff’s papers submitted in opposition to defendant’s cross motion, plaintiff updates his request for counsel fees to include fees for the legal services rendered through May 20, 2022. Plaintiff submits additional invoices to support his request (NYSCEF Doc No. 254). Plaintiff asserts that he has now incurred approximately $40,000 in legal fees for the legal services rendered through May 20, 2022 in enforcing the obligations addressed in his motion. Defendant opposes plaintiff’s request for an award of counsel fees. She asserts that it was due to plaintiff’s conduct in wrongfully demanding statutory interest and defaulting on his obligations under the QDRO to timely transfer the court-ordered sum to her, which resulted in the delay in the property transfers and her payments for such transfers. Discussion Domestic Relations Law §237 (c), under which plaintiff requests counsel fees, provides for the payment of counsel fees to a party where the other party has failed to obey a lawful order compelling payment of a distributive award, where the court finds that such failure was willful. The court, however, does not find that defendant’s failure to pay the monies owed to plaintiff was willful. Rather, defendant is only required to pay the monies owed upon the transfer by plaintiff of the properties to her sole name, which has not yet taken place. While the transfer of the 20th Avenue property has already taken place and the amount due as a result of the modification is presently owed by defendant, she was entitled to $829,840.41 ($234,689.82 plus $595,150.59) as an offset for the amount plaintiff owes her with respect to the Deal property. Thus, there is no showing that there was any willful failure by defendant to pay plaintiff a distributive award. Consequently, plaintiff’s motion, insofar as it seeks an award of counsel fees to him, must be denied. Defendant’s Counsel Fees The Parties’ Contentions Defendant, in her cross motion, also seeks an award of counsel fees to her, pursuant to Domestic Relations Law §237 (b) and §238, in the amount of $25,000. Defendant’s attorney, Jonathan K. Pollack, Esq., a member of the law firm of Beldock Levine & Hoffman LLP, has submitted his affirmation, which sets forth his qualifications. Mr. Pollack, Esq. has also submitted his law firm’s retainer agreement with defendant, and invoices showing the amount of legal fees incurred by defendant (NYSCEF Doc No. 243). Discussion As noted above, defendant seeks an award of counsel fees, pursuant to Domestic Relations Law §237 (b) and §238. Domestic Relations Law §237 (b) provides for an award of counsel fees upon an application to enforce the distribution of marital property. “Domestic Relations Law §238 authorizes a court, in its discretion, to award counsel fees in a proceeding to enforce the provisions of a divorce judgment” (Tuchman v. Tuchman, 201 AD3d 993, 993 [2d Dept 2022]). “There is a “rebuttable presumption that counsel fees shall be awarded to the less monied spouse” (id.). An application for counsel fees, pursuant to Domestic Relations Law §238, is generally addressed to the court’s discretion (see O’Connor v. O’Connor, 116 AD3d 1155, 1158 [3d Dept 2014]; Cheruvu v. Cheruvu, 61 AD3d 1171, 1174 [3d Dept 2009]). While defendant, in her cross motion, seeks to enforce plaintiff’s compliance with transferring the sum due to her under the Madison Maidens QDRO, plaintiff has shown that his delay was caused by his need to correct an error in the calculation. Thus, the court does not find that an award of counsel fees to defendant is warranted. Sanctions The Parties’ Contentions Defendant seeks sanctions against plaintiff in the amount of $10,000, pursuant to 22 NYCRR 130-1.1. Defendant argues that plaintiff has engaged in frivolous conduct in that he has made meritless arguments which were previously denied by the court. Defendant claims that plaintiff’s arguments not only have no merit under the law, but he also makes no reasonable case for extending the law. Defendant contends that sanctions are warranted particularly with respect to the frivolous and redundant nature of his request for statutory interest and his request to alter the amount to be transferred to her pursuant to the QDRO based on his claim that it is duplicative of the Aviva life insurance policy. Defendant asserts that these requests were previously rejected by the court. Defendant further asserts that plaintiff’s claim that the QDRO is duplicative was also denied by the Appellate Division. Defendant argues that plaintiff is attempting to reargue these claims and the time has long ago passed for reargument under CPLR 2221 or for filing an appeal. Plaintiff opposes defendant’s request for sanctions against him. Discussion 22 NYCRR 130-1.1 (c) defines frivolous conduct as conduct which is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law”; “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another”; or “asserts material factual statements that are false.” While the court has rejected arguments made by plaintiff, the court does not find that plaintiff’s conduct in making these arguments rises to the level of frivolous conduct so as to justify an award of sanctions pursuant to 22 NYCRR 130-1.1. Thus, the court denies defendant’s cross motion insofar as she seeks an award of sanctions against plaintiff. Execution of Documents The Parties’ Contentions Plaintiff, in his motion, requests an order requiring defendant to provide him with the appropriate paperwork to transfer the former marital residence and Ditmas Realty LLC into her name. Defendant, following plaintiff’s filing of his motion, submitted paperwork to plaintiff for such transfers (NYSCEF Doc No. 257). Defendant, in her cross motion, seeks an order directing plaintiff to execute the documents provided by her to effectuate the transfer of the former marital residence and Ditmas Realty LLC from their joint names to her sole name and directing plaintiff to turn over all corporate books and records necessary to perfect said transaction, within 10 days. Defendant requests that the documents be held in escrow, pending her payment, and an order allowing her 180 days to obtain necessary financing and/or to liquidate property sufficient to fund her payment to plaintiff. Defendant claims that she cannot afford to make this payment out of liquid funds. She states that she needs to refinance the former marital residence. Plaintiff, in opposition to defendant’s cross motion, states that the transfer documents provided by defendant which she seeks for him to sign lists transfer taxes (both state and city) which would be deducted from the amount owed to him so that he would receive a net number of approximately $50,000 less than what is owed to him in total on both properties (NYSCEF Doc No. 257). Plaintiff also claims that defendant has the monies to pay him, or could take a personal loan to pay him. He asserts that since the commencement of this action, defendant has had access to over $6.5 million. Discussion The court directs plaintiff to execute the deeds and all necessary closing documents effectuating the transfer of the former marital residence and Ditmas Realty LLC (including the Ditmas Avenue property) from his and defendant’s joint names into defendant’s sole name. While plaintiff asserts that the documents provided by defendant require him to pay the full transfer taxes, as provided by the Decision After Trial, the parties shall share the cost of all transfer taxes and fees equally (NYSCEF Doc No. 217 at 30). The amount that defendant is required to pay for such transfers is $1,879,669.63. Although defendant requests that she be given 180 days to obtain necessary financing and/or to liquidate property sufficient to fund her payment to plaintiff, the court notes that defendant has been aware of the payments required of her since at least the time of the Appellate Division decision and order rendered on February 9, 2022. While plaintiff argues that defendant has sufficient funds to make these payments, defendant argues that she lacks liquid funds and needs to refinance. In order to afford defendant an opportunity to obtain financing, the court directs that the closing, at which time the former marital residence and Ditmas Realty LLC (including the Ditmas Avenue property) shall be transferred and defendant shall pay plaintiff the funds owed by her in the amount of $1,879,669.63, shall take place within 90 days of service upon defendant of this decision and order, with notice of entry thereon, or such time as the parties shall otherwise agree in writing. Conclusion Accordingly, it is hereby ORDERED that plaintiff’s motion and defendant’s cross motion are granted to the extent that plaintiff is directed to execute the necessary documents to transfer the former marital residence and Ditmas Realty LLC to defendant and defendant shall pay plaintiff the amount of $1,879,669.63 upon such transfer at a closing which shall take place within 90 days of service upon defendant of a copy of this decision and order, with notice of entry thereon, or such time as the parties shall otherwise agree in writing; and it is ORDERED that Plaintiff’s motion is denied in all other respects; and it is further ORDERED that Defendant’s cross motion is granted to the extent that plaintiff is directed to comply with the QDRO and transfer the $983,320 sum due to defendant under the Madison Maidens Defined Benefit Plan. Any issue raised and not addressed in this decision and order is hereby denied. This constitutes the decision and order of the court. Dated: October 25, 2022