Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this motion: Paper(s) NYSCEF Document(s) Plaintiff’s Order to Show Cause (#1), with supporting documents (filed January 24, 2023 and January 26, 2023) 5-16, 18 Public Administrator’s Cross-Motion (#2), and Opposition to Plaintiff’s Order to Show Cause (#1), with supporting documents (filed February 15, 2023) 35-50 Plaintiff’s Opposition to Public Administrator’s Cross-Motion (#2), and Reply to Public Administrator’s Opposition (#1), with supporting documents (filed March 10, 2023) 51-53 Public Administrator’s Reply to Plaintiff’s Opposition (#2), with supporting documents (filed March 14, 2023) 54-56 DECISION and ORDER The plaintiff, Leonid Trigub (hereinafter “Plaintiff”), and the defendant, Lana Trigub (hereinafter “Defendant”), were married on January 25, 1964, and had two children together: Dmitry Trigub and Stanislav Trigub. Stanislav Trigub tragically died in an accident in 1983, which resulted in compensation to Plaintiff and Defendant in the amount of $45,000.00. The parties used these funds to purchase a property located at 6909 266th Street in Queens, New York, which was subsequently refinanced to enable the purchase of 3050 Brighton 2nd Street in Brooklyn, New York. The parties then refinanced that property to enable the purchase of 139 Remsen Street in Cohoes, New York. All three properties were eventually transferred into Defendant’s name. On December 5, 2018, the parties applied for an uncontested divorce which included an affidavit from Plaintiff wherein he stated, “The parties waive distribution of marital property,” and an affidavit from Defendant wherein she stated, “I am not seeking equitable distribution.” This application resulted in findings of fact and conclusions of law (hereinafter “the Findings of Fact and Conclusions of Law”) and a judgment of divorce (hereinafter “the Judgment of Divorce”), both issued by the Honorable Orlando Marrazzo, Jr. on January 29, 2019. On May 13, 2021, the parties remaining son, Dmitry, also died in an accident and sadly, on July 5, 2021, Defendant took her own life. Plaintiff then petitioned the Richmond County Surrogate’s Court for letters of administration, but was rejected. Instead, temporary letters of administration were granted to the Honorable Edwina Frances Martin, Richmond County Public Administrator (hereinafter “the Public Administrator”) on June 7, 2022, and extended on November 30, 2022. Plaintiff filed the instant order to show cause (Motion Sequence #1) seeking a stay in the Richmond County Surrogate’s Court proceeding of In the Matter of the Estate of Lana Trigub (File #2021-1431); and vacatur of the Judgment of Divorce or, in the alternative, a modification of the Judgment of Divorce to allow for equitable distribution. Plaintiff also sought a stay in the Surrogate’s Court proceeding in the form of interim relief. After a conference on January 26, 2023, with Plaintiff and the Public Administrator both represented by counsel, the order to show cause was signed without interim relief, and placed on the motion calendar. The Public Administrator then filed opposition to Plaintiff’s motion, along with a crossmotion (Motion Sequence #2) seeking removal of the matter to Richmond County Surrogate’s Court pursuant to CPLR 235 (e), and/or denying Plaintiff’s motion in its entirety. Plaintiff filed a reply to the Public Administrator’s opposition, and opposition to the cross-motion, to which the Public Administrator, in turn, filed a reply. Oral argument was heard on March 30, 2023 with Plaintiff and the Public Administrator again represented by counsel, and the Court’s decision was reserved. Plaintiff submitted an affidavit wherein he asserts that he and Defendant decided to reconcile shortly after filing their application for an uncontested divorce and, despite their mutual change of heart, the application proceeded to finality and the Judgment of Divorce was issued. He explains that the parties’ real estate holdings were transferred into Defendant’s name, alone, “for financial planning and convenience purposes,” but, at the time the divorce application was filed, they planned to share their assets equally. These holdings are, by Plaintiff’s account, currently valued at over $2,000,000.00. Plaintiff avers that he never moved out of the parties’ marital residence and they never resided separately. To the contrary, he claims that they continued cohabitating and socializing as a married couple, and attached individual affidavits from a neighbor, a friend, and the superintendent for one of their real estate properties, proffered to corroborate this assertion. Plaintiff argues that the Judgment of Divorce should be vacated or modified because the parties’ waivers of equitable distribution were defective, newly-discovered evidence would have prevented its issuance, and the parties were mutually mistaken in believing that it would have no bearing on how their marital assets would be distributed. The Domestic Relations Law requires that “an agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” (at §236 [B] [3]). Plaintiff posits that the parties’ mutual waiver of equitable distribution “had the effect of being an agreement,” and, as the supporting affidavits containing these waivers were not “acknowledged or proven in the manner required to entitle a deed to be recorded, the entire Judgment of Divorce should be rendered void ab initio. The Court disagrees. It is well settled that an enforceable agreement requires the presentation of an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound (Matter of Civil Serv. Employees Assn., Inc. v. Baldwin Union Free School Dist., 84 AD3d 1232, 1233-1234 [2d Dept 2011]; 22 NY Jur 2d, Contracts §9). There was no offer presented or accepted in this case. The parties merely asserted their willingness to waive equitable distribution, which guided the Court in issuing the judgment. Thus, the requirements of Domestic Relations Law §236 (B) (3) do not apply. The Court finds Plaintiff’s reliance on cited caselaw to be misplaced, as Bold v. Bold (18 Misc2d 709 [Sup Ct, Kings County 1959]) involved a separation agreement, Matisoff v. Dobi (90 NY2d 127 [1997]) and Ballesteros v. Ballesteros (137 AD3d [2d Dept 2016]) both dealt with postnuptial agreements, Galetta v. Galetta (21 NY3d 186) involved a pre-nuptial agreement, and Shaw X. v. Jingdong X. (51 Misc3d 1204[A] [Sup Ct, Kings County 2016]) dealt with a stipulation. Again, the subject of the instant case is a judgment of divorce granted upon an application with supporting affidavits. The Court is not faced with an “agreement” of any kind. Although Serao v. Bench-Serao involved a judgment of divorce, it was vacated due being “devoid of any provision addressing the equitable distribution of the parties’ marital assets or debts” (149 AD3d 645, 646 [1st Dept 2017). Similarly, the vacatur of a judgment of divorce in Katta v. Katta (203 AD2d 531 [2d Dept 1994]) was due to the absence of any provisions for equitable distribution or maintenance. In this case, however, the Judgment of Divorce was issued contemporaneous with the Findings of Fact and Conclusions of Law, which explicitly states, “Equitable distribution is not an issue,” and continues, “Since DRL §170 (7) is the grounds alleged, all economic issues of equitable distribution of marital property…have been resolved by the parties or determined by the court and incorporated into the judgment of divorce.” And although the Court in Haynes v. Haynes characterized the waiver of equitable distribution as “equivalent to an agreement” (2003 NY Slip Op 50867[U], 12 [Sup Ct, Westchester County 2003]), it did so in the context of the movant’s application to set aside a judgment of divorce based on a unilateral mistake. The Haynes Court held that such an application could be granted, “only where the enforcement of the contract would be unconscionable, the mistake is material and made despite the exercise of ordinary care by the party in error” (id. at 12-13, quoting William E. McClain Realty v. Rivers, 144 AD2d 216, 218 [3d Dept 1988]), and denied the motion upon a finding that, while the movant established that she signed and swore to her affidavit without having first read its contents, she provided no valid excuses for failing to do so. Similarly, Plaintiff’s argument that he executed the uncontested divorce documents without fully comprehending them is insufficient to warrant granting the relief sought herein. Plaintiff also argues that the Judgment of Divorce should be vacated pursuant to CPLR 5015 (a) (2), which states that a party may be relieved from a judgment based upon newly-discovered evidence which, if introduced at the trial, would have likely produced a different result, and which could not have been discovered in time to move for a new trial. Plaintiff reasons that his present assertions, and those levied in the affidavits supporting his motion regarding cohabitation and the parties holding themselves out as a married couple, constitute newly-discovered evidence that would have led to a rejection of his application for an uncontested divorce. While it is notable that the Judgment of Divorce was granted based upon an irretrievable breakdown of the marriage for period of at least six months prior to commencement of the action (Domestic Relations Law §170 [7]), and the assertions referenced by Plaintiff would cut against this ground, it cannot be argued that the evidence was not discoverable at the time. Plaintiff was most certainly aware of his own living arrangements and personal conduct during that period. The Court must also dispense with Plaintiff’s argument that the Judgment of Divorce should be vacated due to the parties’ mutual mistake in believing that the marital property would be distributed by oral agreement, as Plaintiff would be unable to prove any mistake further than his own. CPLR 4519 disqualifies parties interested in litigation from testifying about personal transactions or communications with a deceased person. The underlying purpose of this rule is “to protect the estate of the deceased from claims of the living who, through their own perjury, could make factual assertions which the decedent could not refute in court” (Sepulveda v. Aviles, 308 AD2d 1, 18 [1st Dept 2003], quoting In re Estate of Wood, 52 NY2d 139, 144 [1981]). Defendant is now deceased, and the Court will not countenance testimony seeking to invalidate the distribution of property solely in her name without her ability to be heard. Accordingly, Plaintiff’s motion is hereby DENIED in its entirety, and Defendant’s cross-motion is hereby GRANTED to the extent that Plaintiff’s motion has been denied. Any items of relief sought by the motion or the cross-motion that are not addressed by this order are hereby DENIED. The foregoing constitutes the decision and order of the Court. Dated: May 19, 2023
