This proceeding seeks to disallow a claim of the decedent's former spouse to one-half of the net proceeds realized on the sale of the former marital residence pursuant to SCPA 1809. The petitioner is Brooke Ciquera, the executor. The claimant is Frederick Ciquera, the decedent's former spouse. Mr. Ciquera opposes the petition.

The decedent, Jennie Ciquera, died on April 11, 2005. She was survived by three children, Brooke, Eric and Marc. The decedent's Last Will and Testament dated January 8, 2004 was admitted to probate on August 30, 2005 and letters testamentary were issued to Brooke [*2]Ciquera. The decedent's Will provided for a $10,000 bequest to Eric and the remainder to be divided equally among the three children.

On or about September 30, 1974, real property located at 60 Driftwood Drive, Port Washington, New York was transferred by bargain and sale deed from the names of Frederick and Jennie Ciquera into the sole name of Jennie Ciquera. Frederick and Jennie Ciquera divorced in 1982. On November 16, 1982, they entered into a stipulation in their divorce proceeding before the Hon. John Lockman. The stipulation as put on the record provided the following:

"With respect to the marital residence, which is known as

60 Driftwood Drive, Port Washington, New York, the parties

agree as follows:

The wife shall have the right to exclusive occupancy

of the residence until the youngest child of the marriage

attains the age of 21 years - - ...

[attorney for wife]: Until the obligation to provide child

support ceases under this stipulation.

If the wife should remarry, or upon the obligation to pay child support

terminating, or if the wife elects to do so, the premises

shall be offered for sale at the market value thereof."

The petitioner asks that the claim be dismissed because the statute of limitations has expired. According to the petitioner, the statute of limitations started to run on June 20, 1994, when the obligation to pay child support terminated and any proceeding to enforce its terms must have been commenced within the six year statute of limitations (CPLR 213[2]). The claimant, however, asserts that the statute of limitations commences upon the occurrence of one of the following events: remarriage, sale of the premises upon termination of child support, or the decedent's election to sell the real property. As the property was not sold until 2005, the claimant believes his claim is timely.

The stipulation is unambiguous. "It is axiomatic that a contract is to be interpreted to give effect to the intention of the parties as expressed in the unequivocal language employed" (Morlee Sales Corp v Manufacturers Trust Company, 9 NY2d 16 [1961]). The house was to be sold, at the latest, when the obligation to pay child support terminated. The obligation to pay child support, in turn, terminated on June 20, 1994. The agreement is governed by the six year statute of limitations (CPLR 213 [2]; see Dolan v Ross, 172 AD2d 1013 [4th Dept 1991]; Fixler v Fixler, 290 AD2d 482 [2d Dept 2002]). Hence, the claim is untimely.

The petitioner's request to disallow the claim as barred by the statute of limitations is granted.

Settle decree.

Dated: August 21, 2008JOHN B. RIORDAN

Judge of the

Surrogate's Court