In this action for divorce and ancillary relief the court conducted a trial over fourteen days. The defendant does not contest the plaintiff's demand for a divorce on the ground of constructive abandonment, subject to conditions discussed later.

The parties were married in a valid, religious ceremony on December 23, 1984. Four children were born of the marriage, all of whom are emancipated, except for the youngest child. He lives with the defendant and will be twenty-one on October 13th of this year.

Every other fact in this case must be gleaned from a morass of proceedings, exhibits and testimony that has dissipated not only the resources of the parties, but of the judiciary in several [*2]courts over some six years.

In June 2005, plaintiff sued defendant for divorce. That action was dismissed in March 2007 after a jury determined that fault grounds for the divorce were not proven. On May 2, 2007,

another divorce action was commenced, resulting in various orders, including one dated March 2, 2010 awarding temporary weekly maintenance in the amount of $350.00 and an additional $150.00 toward arrears.

This second divorce action, as contentious as the first, has resulted in several years worth of hearings and discovery, much of which is now outdated. Trial testimony was confused and muddled. Claims on both sides were unsubstantiated and even the testimony of expert witnesses as to property valuations was not particularly helpful to the court.

Nevertheless, it is the court's obligation to find the credible facts and equitably lay to rest this twenty-six year partnership.

The parties have an interest in six separate properties. A seventh, located at 1259 52 Street in Brooklyn, is the subject of a separate action before Justice Lawrence Knipel of this court, and is not part of this decision.

On the date of the marriage, the defendant, Simon Taub, owned 10 Grand Avenue, Brooklyn. He purchased the vacant building in March 1980 for $245,000.00 and spent another $3,000,000.00 of his separate earnings to convert it to his successful sweater-knitting business.

The defendant, at the date of the marriage, was also in contract to purchase 23-27 Grand Avenue, Brooklyn, for use in his business as well. As a result of the parties' honeymoon, however, the closing on the property was delayed until January 2, 1985, ten days after the marriage. He paid $350,000.00 for the property and renovations for use in the knitting business cost him another $1,500,000.00.

As the business thrived, the parties were able to purchase 1405 49 Street, Brooklyn, in May 1986, as their marital home, for $350,000.00. Renovations cost another $1,000,000.00.

In November 1990, a vacant parcel at 8 Grand Avenue, Brooklyn, was purchased for use in the business. The cost was $185,000.00, with an additional $500,000.00 to build the building.

Then, in June 1996, a summer home at 85 Forshay Road, Monsey, NY, was bought for $210,000.00, and in December 1997, a building with one commercial and two residential tenants was purchased at 4819 14th Avenue, Brooklyn, for $325,000.00.

Title to these properties has shifted over the years of this litigation, but is it not disputed, and the court determines that regardless of the name on the deed, and without burdening this decision with a history of the title transfers, either or both of the parties to this litigation have an interest in them.

The family settled into its home, and Mr. Taub's business, Techknits, flourished. Mrs. Taub took on the role of caregiver for the children and hostess for the home. There is nothing in the record to indicate that she did not do her job well and, in turn, her husband provided her with household help. They lived very well on the earnings of Mr. Taub's business and the couple thrived. Defendant was earning in the area of $350,000.00 per year, and, received $3,900,000.00 when his company went public.

The parties augmented the silverware each brought into the marriage by adding between [*3]$25,000.00 and $90,000.00 in purchases. Jewelry was also purchased worth tens of thousands of dollars, stock accounts were opened, and hundreds of thousands of dollars in cash kept in a safe in their home, from which each was free to draw.

Gifts were given to the children of each party from a prior marriage, including between $150,000.00 and $180,000.00 to Mr. Taub's two daughters for purchase of apartments in Israel around 1993.

Unfortunately, in December 1997, Techknits filed for bankruptcy as a result of poor market conditions. Creditors were paid 80% - 90% and the company was finished in 2001.

At that time, at least four years before the commencement of the first divorce action, Mr. Taub began to borrow money in order to maintain the illusion of a grand and lavish life. His income was reduced to $77,000.00 in 2002. Despite this setback, however, Mr. Taub began renovating the properties at 10 Grand Avenue and 8 Grand Avenue. Apartments were built and rented over a period of several years at a cost of about $700,000.00 - $900,000.00 according to the defendant, or several millions of dollars according to the plaintiff. Unfortunately, Mr. Taub's application for conversion to residential zoning under the 2010 Loft Law was denied. Since the residential use is presently not legal, the future of the buildings is uncertain.

For whatever reason, by 2005 the parties' relationship deteriorated. The plaintiff had her husband removed from the house and received an order of protection in Family Court. Defendant responded, the order was dismissed and he was allowed back in the house only to discover money and jewelry missing from the house safe.

As already stated, a divorce action was instituted and later dismissed; followed by this second action. Between the start of the first case and the conclusion of the trial of the second, Mrs. Taub contends that her husband owes more than $50,000.00 rent for his apartment at 4819 14 Avenue, maintenance of over $2,775.00, over $200,000.00 for rents he collected, among other things. Mr. Taub, in turn, makes claims against his wife for $73,000.00 he contributed to the expenses of 4819 14 Avenue, between $160,000.00 - $170,000.00 lost when his wife blocked the sale of 85 Forshay Road, in addition to rent she collected and kept, the money and jewelry from the safe, silverware she sold, moneys she has paid for lawyers out of marital proceeds, and $5,000.00 for a hospital bed she agreed to return to him.

In addition to the judgment of divorce, the issues to be decided are: (a) equitable distribution and distributive award; (b) maintenance; and (c) child support. Any judgment settled pursuant to this decision shall be enforced in the United States Bankruptcy Court for the Eastern District of New York pursuant to the order of Judge Elizabeth Stong of that court dated August 14, 2009.

A.EQUITABLE DISTRIBUTION AND DISTRIBUTIVE AWARD

The Domestic Relations Law contemplates an equitable division of assets based on each party's contributions to the marriage (DRL §236 [B][5][d][6]). Contributions are not limited to money, but include homemaking, child-rearing, and support that allows the other to cope with life in the financial world (see, Price v Price, 69 NY2d 8).

1. REAL ESTATE

In this case, the husband worked, first in the knitting business, and then in real estate. A lot of money was earned, a lot of money was spent, and a lot of money was lost. For her part, the [*4]wife cared for the home and the children and insured that her husband could entertain friends and neighbors lavishly and frequently, all of which allowed him the freedom and earned him the respect, that enabled his success.

Given these essentially equal contributions to the acquisitions of the marriage, the court determines that the properties purchased during the marriage and located at 1405 49 Street, 4819 14 Avenue and 85 Forshay Road are marital properties that shall be sold and any net proceeds equally divided between them.

The building at 8 Grand Avenue, purchased during the marriage in November 1990, is also to be equally divided. However, since it receives utilities from 10 Grand Avenue and houses two commercial and eight residential tenants, the sale of the premises cannot easily be ordered. The additional complication of the city's denial of the loft conversion applications adds to this, not to mention the fact that Mr. Mascia, plaintiff's witness testified that the building is worth over $3,000,000.00, as opposed to defendant's expert, Mr. Sussan, who evaluated the property at ten percent of the value or $300,000.00. Interestingly, on cross-examination, reference was made to an appraisal by Jeffrey Langer, who did not testify at trial, but appraised the property at $1,100,000.00.

In any event, both parties agree that hundreds of thousands of dollars of marital moneys were used to renovate this building. Since forcing the sale would, in the court's opinion, be harmful to both parties' economic future that is not an option. Furthermore, given the bitterness existing between them, a partnership in the premises is equally impossible. For these reasons, the court awards title to the property at 8 Grand Avenue to the defendant upon his payment to the plaintiff of a distributive award in the amount of $500,000.00.

With respect to 10 Grand Avenue, it is clearly the husband's separate property, purchased several years before the marriage. Although appreciation in value may have been due to market conditions and not as a result of any contributions by Mrs. Taub, it is unclear if it appreciated. Mr. Mascia stated it is worth $16,400,000.00; Mr. Langer found its value to be $5,000,000.00. Its value could also be $3,000,000.00 as Mr. Taub conjectured or $20,000,000.00 as Mrs. Taub speculated. Finally, Mr. Sussan valued the property at $0 because of the cost to restore it to manufacturing. The court can, thankfully, make a determination as to Mrs. Taub's equitable share of 10 Grand Avenue without the need to reconcile or choose among these evaluations because of renovations made with marital moneys that now produce a gross income of some $900,000.00. Again, the parties' estimation of renovation costs differs widely from $700,000.00 - $900,000.00 to millions.

There is some evidence in the case that helps to reconcile the figures. First, the defendant's 2002 and 2003 tax returns in evidence indicate on Schedule "E" that about $1,300,000.00 was spent on building the apartments at 10 Grand Avenue. If one were to take the lowest estimate of $150 per square foot construction costs posited at the trial, the amount spent would be much more. However, the court credits Mr. Taub's testimony that he acted as his own general contractor which would reduce the cost considerably. The court, therefore, credits Mrs. Taub with $650,000.00 due to her from the cost of renovation of 10 Grand Avenue and orders an additional distributive award in that amount be paid to her by the defendant. As stated earlier, a distributive award is justified since to allocate an equitable share would force the parties into a disastrous partnership. No reduction for half of the encumbrance is given to the defendant since [*5]this is the plaintiff's share of marital moneys used by defendant in constructing the building.

The property located at 23-27 Grand Avenue was contracted for prior to the marriage. Title closing, however, was postponed, as a result of the parties' wedding, until ten days after the marriage. Clearly, it would be unfair to apportion this property equally as if it were purchased after the marriage like, for example, the marital home. Since the building was, however, renovated in 1986 with marital moneys, some portion of the appreciation must be awarded to the plaintiff. In addition, there is currently a $374,822.00 mortgage on the property which has been and continues to be paid with marital funds. Defendant claims that he is entitled to credit against the distributive award for renovations to this building as well as 10 Grand Avenue for everything he spent on them in developing his business. This is, in the court's opinion, no more warranted than to now give the plaintiff an award of half of the moneys received when Techknits went public. The separate money was spent to make the buildings suitable for defendant's business. Since it has not existed for some time, the distributive award is based on present value and no credit is given for moneys spent on making the buildings something they have not been for more than a decade. As with 10 Grand Avenue, the valuations vary widely. The court credits the appraisals of Mr. Gallant, which appraises the property at $4,260,000.00 (Plaintiff's Exhibit 12) as of June 2008 and $2,600,000.00 as of June 2010 (Defendant's Exhibit J) and values the building at $3,000,000.00 (see Ivani v Ivani, 303 AD2d 639). Plaintiff is entitled to 25% of that value less half of the existing loans. The defendant is, therefore, awarded title to the property at 23-27 Grand Avenue upon his payment of an additional distributive award of $562,589.00 to the plaintiff (Loria v Loria, 46 AD3d 768).

2. OTHER ASSETS, LOANS

The plaintiff claims she is entitled to a share of the Israeli apartments partially purchased by the defendant for his two daughters of a prior marriage. Since these gifts were given during the marriage, more than a decade before any divorce action (see Plaintiff's Exhibit 16), no such award is warranted. As Mr. Taub stated on cross-examination, both he and his wife gave gifts to the plaintiff's daughters from a prior marriage as well.

It is also true that any stock accounts and bank accounts held by the parties were liquidated some twenty years before this action and will not be considered as part of the marital estate. Likewise, both parties claim the other misdirected rentals, took money not belonging to them and, in addition, the defendant wants a credit for $200,000.00 to $240,000.00 his wife took from the marital safe before any divorce action commenced. The court directs in its equitable power, that no award for these claims be made to either party (see, Hilger v Hilger, 570 SW2d 736).

After the commencement of the first action, the plaintiff did, by her own admission, encumber the marital home at 1405 49 Street, by taking out a mortgage on September 16, 2005, in the amount of $650,000.00. She used the proceeds to pay off the existing mortgage of $350,000.00 and used the balance of $300,000.00 to pay attorneys. The court finds that the defendant is entitled to half of that amount or $150,000.00 to be offset against the award of attorney's fees, set forth below.

In addition, the plaintiff's sale of the parties' silverware was a dissipation of a valuable asset. The fact that she netted $20,000.00 does not negate her own testimony that it was worth $100,000.00 and insured for that amount. The defendant is entitled to offset $50,000.00 from the [*6]distributive award ordered. Likewise, to the extent, if any, that the attorney's lien of Mr. Rosenthal on premises 4819 14 Avenue reduces the net proceeds of the sale defendant is entitled to a credit for that amount.

Defendant's claims for lost or stolen jewelry and change are unsubstantiated and the court determines the value has not been proven. As a result, no award is made for these items. Plaintiff's claim for a percentage of 10 Grand LLC is unfounded. The only proof presented at trial established that this entity collects the rent and pays the bills on the real estate. No additional award to plaintiff is warranted.

Plaintiff, at the time of the inquest for divorce, promised to return defendant's hospital bed or pay him $5,000.00. Since the bed has not been returned or replaced, as promised, and since the entry of a judgment of divorce is conditional upon same, the defendant is awarded an offset of $5,000.00 against the plaintiff's distributive award.

B.ATTORNEY'S FEES

The defendant's gross income for 2008 was $601,570.00, and the plaintiff is not working. Based on this disparity, the defendant is not awarded attorneys' fees and plaintiff is awarded attorneys' fees of $150,000.00.

C.CHILD SUPPORT

The youngest and only unemancipated child of the parties will be twenty-one in six months. Given this fact and the disparity in the parties' income, no award of child support is given to the defendant. It is further presumed that the son is old enough to decide when and where to see each of his parents, so no visitation or custody award will be made, other than those issued in prior court proceedings.

D.MAINTENANCE

The parties have been married for over 26 years. In that time, the defendant built a successful business and purchased several parcels of real estate, worth millions of dollars. When his business failed, Mr. Taub was able to re-invent himself into a landlord with a current gross income of nearly $1,000,000.00 which has increased consistently. The plaintiff, on the other hand, never really worked. She took care of her home and children and allowed her husband the freedom to thrive. Her children are grown now and her marriage has ended. She has no skills and will not be able to support herself.

In considering the above, that is, the financial health of the parties, as well as their ages and physical health, the pre-divorce and current standard of living, and the ability of each to support himself and herself, as well as the length of the marriage, the court awards maintenance to the plaintiff in the annual amount of $72,000.00, payable in monthly installments of $6,000.00 on the first day of each month (DRL §236 [B][6][a]; Wasserman & Wasserman, 66 AD3d 880).

E.METHOD OF PAYMENT

(1)As directed in this decision, the defendant is to

pay a distributive award to plaintiff totaling $1,712,589.00

(8 Grand = $500,000.00; 10 Grand = $650,000.00; 23-27 Grand = $562,589.00) less credit of $205,000.00 (mortgage = $150,00.00;

jewelry = $50,000.00; bed = $5,000.00) for a total distributive award of $1,507,589.00, and title to the Grand Avenue properties is awarded to defendant, conditioned upon such payment.

This money shall be payable within ninety (90) days of the entry of judgment and shall [*7]bear interest at the rate of 9% commencing with the entry of judgment.

(2)Defendant shall reimburse plaintiff $150,000.00 for attorneys' fees, which will be offset against the sale of property at 1405 49 Street.

(3)The properties at 1405 49 Street, 4819 14 Avenue and 85 Forshay Road shall be sold and the net proceeds, if any, shall be divided equally between the parties, with a credit to the defendant for any lien paid out of the sale of 4819 14 Avenue to Attorney Rosenthal.

(4)Defendant is ordered to pay maintenance to the plaintiff in the amount of $72,000.00 per year in monthly installments of $6,000.00 payable on the first day of each month.

(5)Plaintiff is awarded a judgment of divorce against the defendant on the ground of constructive abandonment as directed by the Order of this court on March 7, 2008 (Demarest, J.)

(6)This decision shall be enforced in the Bankruptcy Court for the Eastern Division of New York and any judgment entered hereunder shall provide for same under the order of that court dated August 14, 2009 (Stong, J.)

The parties are directed to settle a judgment with Findings of Fact and Conclusions of Law within 60 days.

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic

J.S.C.