Introduction

Upon the foregoing papers plaintiff, Darren Carbone, moves in this post

judgment matrimonial application for an order from this court directing that the former

marital residence located in Staten Island, New York 10309 (the marital residence) be

listed for sale and sold as soon as possible. Defendant, Joya Carbone, opposes the

motion. The gravamen of the issue presented is what is the meaning of a " third party guest of the opposite sex," and whose guests are the parties referring to in the context of a stipulation of settlement which provides "[n]o third party guest of the opposite sex, related or not, shall reside at said marital residence, prior to sale. Should such guest(s) of the opposite sex reside in the marital residence, as prohibited above, the occurrence shall "trigger" the sale of the marital residence.".

On June 8, 2004, the parties entered into a Stipulation of Settlement that was incorporated, but not merged into, a judgment of divorce entered and filed on August 18, 2004. In pertinent part, the stipulation of settlement provided the defendant with exclusive occupancy of the marital residence "until the youngest child of the marriage attains the age of twenty-one years." The parties further stipulated that "[n]o third party guest of the opposite sex, related or not, shall reside at said marital residence, prior to sale. Should such guest(s) of the opposite sex reside in the marital residence, as prohibited above, the occurrence shall "trigger" the sale of the marital residence.". The parties agreement did not specifically define the term "third party guest.".

Plaintiff asserts that for the past several years numerous third party guests of the opposite sex have resided at the marital residence in violation of the settlement agreement. Specifically, plaintiff claims that while one of his daughters was residing at the marital residence, her paramour, resided there with her full time from December 2007, through June 2008. In support of his motion, defendant submits two (2) affidavits from the parties' own children in his reply papers. The affidavits have similar content. The daughter's affidavit states as follows:

"2 . . . I resided with my mother, Defendant herein, at my parent's former marital residence located in Staten Island, New York . . ., since their divorce in 2003 through July, 2009, when I went to I've with my father, Plaintiff herein, ....

3.My paramour, John [last name omitted], who is

now approximately 28 years old, resided full-time at Defendant's residence with Defendant, my sister, my brother, and myself, from December, 2007, through June 2008.

4.Additionally, the said John [last name

omitted], further resided full-time at Defendant's residence with Defendant, my sister, and myself from March, 2009, through July 2009.

Defendant states in her affidavit of opposition " . . .that at no time prior to

or after the Plaintiff's application has the Defendant had a "guest' of the opposite sex, of their own "residing" at the marital residence and has maintained the sanctity of the marital residence and the integrity of the Stipulation of Settlement". While the defendant does not dispute that resided at the marital residence, she disputes his status as the "third party guest" for the purposes of triggering the sales clause of the Agreement. Defendant maintains that is not her own guest, but rather the guest of her daughter who rightfully resided at the marital residence at the time in issue. She avers that because is not her own guest, the sale of the martial residence is not triggered.

Plaintiff is requesting the court to order the sale of the marital residence in [*3]

accordance the settlement agreement entered into by the parties. The core of the dispute is the definition of the term "third party guest," otherwise not defined in the stipulation of settlement.

A separation agreement executed by the parties which is not merged into

the judgment of divorce survives as " . . . a contract subject to the principles of contract construction and interpretation." (Matter of Mecico v Meccico, 76 NY2d 822, 823-824, 559 N.Y.S.2d 974, 559 N.E.2d 668 [1990]). "A fundamental tenet of contract law is that agreements are construed in accordance with the intent of the parties and the best evidence of the parties' intent is what they express in their written contract (see e.g. Innophos, Inc. v Rhodia, S.A., 10 NY3d 25, 29, 852 N.Y.S.2d 820, 882 N.E.2d 389 [2008] ). "Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms," without reference to extrinsic materials outside the four corners of the document" (internal quotations omitted) (Goldman v White Plains Ctr. For Nursing Care, LLC, 11 NY3d 173, 176, 867 N.Y.S. 2d, 27, 896 N.E.2d 662 [2008]).In Graev v Graev, 11 NY3d 262 [2008] the Court of Appeals of the State of New York was presented with the issue of the meaning of the term "cohabitation" in the context of a matrimonial agreement. In Graev v Graev the word "cohabitation" was not specifically defined in the parties' settlement agreement. Both parties provided competing definitions found in New York case law and legal dictionaries. Ms. Graev argued that "cohabitation" was a "plain meaning" term, despite the numerous possible definitions and that the Court could apply the definition provided by case law. Mr. Greav contended that "cohabitation" was an ambiguous term and that extrinsic evidence was needed to define it in the agreement. The Court of Appeals found that " . . . neither the dictionary nor New York case law suppli[ed] an authoritative or "plain" meaning." of the term "cohabitation." (Graev v Graev, 11 NY3d 262, 271 supra). The court noted the word was "sufficiently ambiguous to have been interpreted so variously by the courts." (Id at 274, FN 4). The court further noted that "[w]ithout extrinsic evidence as to the parties' intent, there is no way to assess the particular factors inerrant in the dictionary meanings or case law discussions of cohabitation' the parties may have meant to embrace or emphasize." (Id, at 274).

In this at bar, this Court finds that the term "third party guest" as used in the parties stipulation of settlement does not have a "plain meaning," as required for contract interpretation. Similarly, both parties herein offer plausible interpretations of the term, establishing that the term is ambiguous as applied to this agreement. It is entirely possible that at the time the settlement agreement was signed, the parties understood the term "third party guest" to mean different things. This Court cannot and should not speculate or rule as to the parties understanding without further evidence. Accordingly, this issue is scheduled for a hearing as to the parties intent of the meaning of the phrase "third party guest" as used in their stipulation of settlement, and to determine if the guest [*4]referred to were guests of the children or a guests of the mother or both. The hearing is referred to Judicial Hearing Officer Ira Harkavy, JHO Matrimonial Part 1 to be heard on April 30, 2010 at 9:30 a.m. in room 357.. Counsel and the self represented defendant shall contact the clerk of the JHO Part at (347) 296-1642 no later than April 6, 2010, to arrange to execute the necessary forms to effectuate the referral to hear and report or if they agree to hear and determine pursuant to 22 NYCRR Part 122.

Conclusion

Plaintiff's motion to order the sale of the marital residence and ancillary

issues is held in abeyance pending a hearing to determine the intent regarding the definition of the term "third party guest,"and the determination if the guest was a guest of the child or a guest of the mother. The parties shall appear on April 30, 2010, at 9:30 a.m. in room 357.

E N T E R

J. S. C.