SUFFOLK COUNTY
Supreme Court
Justice MacKenzie
SUMMARY
There is a bright line rule of law that an agreement lacking the proper acknowledgment is unenforceable. It is undisputed that the parties were married September 27, 2003 and separated January 5, 2007, and negotiated a Separation Agreement which was ultimately signed by defendant on September 12, 2007 and her signature properly acknowledged. Said agreement was forwarded to plaintiff who also signed but failed to have his signature properly acknowledged. Defendant received a copy of the agreement with plaintiff's unacknowledged signature approximately one year later with plaintiff's handwritten changes. Defendant notified plaintiff by letter dated September 15, 2008 of the acknowledgment issue, revoked her signature and objected to any attempt by plaintiff to remedy the invalid execution of the Agreement.
Plaintiff moves this Court for an order granting him summary judgment, divorcing the parties pursuant to DRL §170(6) and granting plaintiff an award of counsel fees. Alternatively, plaintiff seeks an order dismissing defendant's counterclaims for equitable distribution and maintenance and sanctioning defendant based on defendant's submission of an alleged false Statement of Net Worth. Plaintiff states that the parties entered into a Separation Agreement on September 12, 2007 and lived according to said agreement thereafter. Plaintiff states that upon notification by the defendant in a letter in September of 2008, wherein she revoked her signature and objected to plaintiff rectifying the problem, plaintiff realized that his signature was not properly acknowledged as per DRL §236(B)(3). Shortly thereafter, plaintiff had his signature acknowledged and filed the Agreement with the County Clerk on July 30, 2009. Accordingly, as the parties have lived separate and apart for over one year, plaintiff avers that a conversion divorce should be granted. Plaintiff argues that any efforts by defendant to abandon said Agreement and change the terms therein are meritless and nothing more than an opportunistic change in position. Plaintiff challenges defendant's Statement of Net Worth and her claimed income.Defendant cross moves for an order denying plaintiff's application; granting summary judgment in favor of defendant and dismissing plaintiff's first, fifth and sixth causes of action. Defendant states that she gave plaintiff the Agreement after she signed and acknowledged same and never received a copy of such from defendant until one year later. Further, defendant argues that plaintiff's subsequent acknowledgment is irrelevant as he did so only after she revoked her signature. Accordingly, defendant avers that a divorce can not be granted on the basis of an invalid agreement. Additionally, defendant asserts that the requests for counsel fees and sanctions must be denied as same are based on provisions contained in an invalid agreement.
Plaintiff argues that a subsequent acknowledgment is acceptable if such complies with DRL §236(B)(3). Further, plaintiff stresses that the parties lived in accordance with the Agreement thus ratifying same.
Defendant argues that plaintiff made notable changes to the Agreement upon receiving same from defendant and that the defendant was not aware of those changes. Finally, defendant reiterates that the Agreement was acknowledged by plaintiff only after defendant's revocation of her signature.
A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing a judgment in favor of any party (CPLR §3212(b)).
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 (DRL §236(B)(3). An agreement lacking said acknowledgment prerequisite is unenforceable (Matisoff v. Dobi, 90 NY2d 127 (1997)). An unacknowledged nuptial agreement which is acknowledged on a subsequent date is enforceable in a matrimonial action if the later acknowledgment is in compliance with DRL §236(B)(3) (Arizin v. Covello, 17 Misc.2d 453 (NY County Supreme Court, 1998)). While a revocable offer to a bilateral contract may be revoked at any time prior to acceptance, that revocation or rejection is effective at the moment of receipt (Buchbinder Tunick & Co. v. Manhattan National Life insurance Co., 219 Ad2d 463 (1st Dept. 1995), citing Calamari & Perillo, Contracts §2-20 at 114). An agreement is deemed ratified when a party accepted the benefits of such and substantially complied with its terms (Brennan v. Brennan, 305 AD2d 524 (2nd Dept. 2003)).
It is undisputed that the parties were married September 27, 2003 and separated January 5, 2007. Further, the parties negotiated a Separation Agreement which was ultimately signed by defendant on September 12, 2007 and her signature properly acknowledged. Said agreement was forwarded to plaintiff who also signed but failed to have his signature properly acknowledged. Defendant received a copy of the agreement with plaintiff's unacknowledged signature approximately one year later with plaintiff's handwritten changes. Defendant notified plaintiff by letter dated September 15, 2008 of the acknowledgment issue, revoked her signature and objected to any attempt by plaintiff to remedy the invalid execution of the Agreement.
First, at the time of defendant's revocation, plaintiff's signature had not been properly acknowledged and, thus, there was no effective Agreement. There is a bright line rule of law that an agreement lacking the proper acknowledgment is unenforceable, supra, (Matisoff v. Dobi at 135,36). It follows that a revocation received prior to a proper acknowledgment shall be given effect as there can be no valid acceptance without meeting the statutory requirements for execution.
Second, in the case at bar, it is clear that plaintiff made certain changes and notations to the parties' Agreement subsequent to defendant's signature and acknowledgment on September 12, 2007 and prior to the acknowledgment of his own signature on September 18, 2008. Specifically, there is a two page insert between pages 15 and 16 of the Agreement wherein plaintiff writes that certain terms are unacceptable with a date of 10-12-07, one month after defendant signed the Agreement. These, in addition to changes or notations made by plaintiff on pages 1, 3, 4, 5, 6 and 13, are not initialed by defendant which initials would serve to indicate that she reviewed and accepted same. Plaintiff altered the terms of the Agreement by making the above noted changes, terms that were not presented to defendant until she received a copy of the "amended" Agreement approximately one year later. As such, defendant's written revocation to plaintiff dated September 15, 2008 was effective upon receipt by the defendant, which he admits, for two reasons: one, the Agreement was not properly executed when the revocation was received; and, two, defendant had never accepted the new terms of the "amended" Agreement. Plaintiff's efforts to acknowledge his signature three days after revocation do not make the Agreement enforceable as no agreement had been reached between the parties. Thus, there can be no substantial compliance as required by statute.
For reasons cited herein, the Court finds the plaintiff's arguments with regard to ratification and/or estoppel to be without merit.
Further, this Court rejects plaintiff's challenges to defendant's statement of net worth in that same are based on an appraisal of defendant's business by an appraiser retained by plaintiff using incomplete discovery.
The remainder of plaintiff's arguments with regard to any benefits defendant received will be considered in the context of this matrimonial litigation.
Accordingly, it is
ORDERED, that plaintiff's application is DENIED in its entirety; and it is
ORDERED, that defendant's application to grant her summary judgment with regard to plaintiff's first, fifth and sixth causes of action in the Second Amended Verified Complaint and dismissing same is GRANTED in that all are based on the parties' Separation Agreement being deemed valid. This Court has declared said Agreement to be invalid thereby making these causes of action without merit; and it is
ORDERED, that counsel and the parties shall appear for a conference in this matter on May 17, 2010.
The foregoing constitutes the order of this Court. ¦
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