Frederick Ippolito v. Dana Ippolito

Mineola, New York family law lawyers represented the parties in a divorce.

In a matrimonial action in which the parties were divorced by judgment entered July 2, 2021, the plaintiff appeals from an order of the Supreme Court, Nassau County (Edmund M. Dane, J.), dated October 11, 2022. The order (1) denied the plaintiff's motion to permit him to access the former marital residence with a bank appraiser for the purpose of conducting an appraisal and for an award of attorneys' fees and (2) granted the defendant's cross-motion pursuant to 22 NYCRR 130-1.1 for an award of sanctions to the extent of awarding the defendant attorneys' fees in the sum of $1,202.50.



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The Supreme Court erred in denying that branch of the plaintiff's motion which was to permit him to access the former marital residence with a bank appraiser for the purpose of conducting an appraisal. Contrary to the defendant's contention, it is not determinative that the stipulation failed to specifically provide for this occurrence. As correctly argued by the plaintiff, construing the stipulation in a manner so as to deny him reasonable access to the former marital residence with a bank appraiser renders meaningless those provisions of the stipulation that obligate him to endeavor to remove the defendant's name from the mortgage "by either paying off said mortgage, refinancing said mortgage, modifying said mortgage, assumption or by sale of the Marital Residence (including by short sale)," and to prevent a judgment of foreclosure and sale by, inter alia, negotiating a settlement with the bank. Additionally, the stipulation contemplates that the plaintiff will fulfill these obligations during the defendant's period of sole and exclusive occupancy. Notably, an action to foreclose the mortgage has been commenced against the parties. An appraisal was required by the plaintiff's bank to resolve a settlement or to negotiate a discounted payoff. Therefore, in order to give full meaning and effect to the parties' stipulation and to enable the plaintiff to fulfill his obligations in connection therewith, the stipulation must be construed so as to permit the plaintiff to access the former marital residence with a bank appraiser for the purpose of conducting an appraisal (see Seruya v Seruya, 107 A.D.3d at 973-974). Moreover, the court's conclusion that the parties waived further appraisals with respect to the former marital residence is based upon language in the stipulation that is taken entirely out of context (see generally Archer v Skokan, 70 A.D.3d 877, 878-879).



Ippolito v. Ippolito, 2024 NY Slip Op 04381, Index No. 201328/17, No. 2022-09507

(N.Y. App. Div. Sep 11, 2024)