Supreme Court, Kings County, October 24, 2022

Dustin Bowman, Kew Gardens, for plaintiff.

Ernest E. Wilson, Brooklyn, for defendant.

The question before this court is whether the court should restore a matter to the calendar where there are no unemancipated children and neither party submitted a judgment of divorce for 12 years after they entered into a stipulation of settlement and proceeded to inquest. Now, more than a decade later, the parties do not request that a judgment of divorce be signed by the court; rather, the plaintiff requests, in effect, to re-litigate issues in an action which proceeded to inquest and allocution in September 2009 notwithstanding that the six year statute of limitations to enforce an agreement has long passed.

The court notes that neither of the parties' current attorneys represented them in the [*2]proceeding in 2009 nor was it either of these attorneys who failed to file a judgment of divorce timely.

Upon the papers plaintiff husband moves by order to show cause dated February 14, 2022, for an order seeking the following relief:

"(1) restoring this action to the calendar for enforcement of the September 2009 Stipulation of Settlement;

"(2) awarding Plaintiff $7,500 in legal fees with leave to apply for an additional award;

"(3) enlarging time for the Plaintiff to perfect papers to obtain divorce, including but not limited to the judgement of divorce; restraining Victoria Abike Iyageh (defendant) and her agents from removing, encumbering, or disposing of or otherwise transferring real property located at [XX] Quincy Street, Brooklyn, New York 11216; [XX] Stanhope Street, Brooklyn, New York, 11221; [XX] Windsor Mill Road, Baltimore Maryland 21207;

"(4) assess Plaintiff's cost of making this motion Pursuant to CPLR Article 31 [sic], CPLR § 5104 and N.Y. Judiciary L. § 753 to assess Plaintiff cost{**77 Misc 3d at 294}[sic] of making this instant motion payable from the Defendant to the Plaintiff for violation of the 2009 stipulations;

"(5) ordering an accounting of income and expenses for all marital property;

"(6) awarding Plaintiff legal fees;

"(7) compelling Plaintiff [sic] to submit a new [sic] worth statement;

"(8) together with such other and further relief as to the Court may seem just and proper."

The parties were married in Nigeria in 1967. On October 24, 1989, the parties legally married in New York. There are six children born to this marriage: there are no unemancipated children of the marriage.

Plaintiff commenced a divorce action in Kings County Supreme Court on December 29, 2008. The case was presided over by the Honorable Luigi Marano. The parties entered into a stipulation of settlement on May 28, 2009, which provided for the equitable distribution of the parties' marital property, including the parties' marital residence. An allocution of the settlement stipulation was conducted on September 18, 2009, by the Honorable Luigi Marano. During the allocution the Honorable Luigi Marano directed the parties to "[s]ubmit separate findings of facts, conclusion of law, judgment, and minutes on notice within sixty days, or the action will be deemed abandoned subject to what I said on the record."

Following the September 2009 appearance, neither party filed the judgment of divorce packet. The next action taken under this index number was plaintiff's filing of this application in February 2022.

Plaintiff's Motions

Plaintiff seeks an order restoring this action to the calendar for enforcement of the parties' September 2009 stipulation of settlement. Plaintiff also requests that defendant be restrained from removing, encumbering, disposing of, or otherwise transferring the parties' real property located at Quincy Street, Brooklyn, New York (hereinafter referred to as the marital residence); Stanhope Street, Brooklyn, New York; and Windsor Mill Road, Baltimore, [*3]Maryland.

Plaintiff contends that restoring this case to the calendar and enforcing the parties' 2009 stipulation of settlement is necessary{**77 Misc 3d at 295} because, he alleges, the defendant attempted to "steal" the marital residence in or about May 2007, prior to the commencement of the divorce action, because she entered into a tenancy in common with the six adult children for the marital residence without his knowledge and/or consent. It is undisputed that in December 2015, the wife filed a lawsuit against the parties' children, seeking revocation of the 2007 deed and restoration of sole and exclusive title to tenants by the entirety of the marital residence. In December 2021, the Honorable Loren Baily-Schiffman entered an order granting summary judgment to the plaintiff and vacating the 2007 conveyance between the defendant and the parties' children.

Defendant's Motions

Defendant opposes plaintiff's motion asserting that the stipulation should be deemed unenforceable because the six year statute of limitations expired in or about the end of 2015.^[FN1] Additionally, the defendant contends that if the court were to find that the stipulation of settlement was not barred by the statute of limitations the plaintiff would have to commence a plenary action for enforcement inasmuch as the divorce action was, she contends, abandoned more than a decade ago pursuant to 22 NYCRR 202.48 and that plaintiff made no showing of "good cause" to restore it to the calendar.^[FN2]

Action Abandoned

Pursuant to 22 NYCRR 202.48 (a), a proposed judgment or order that must be settled or submitted on notice must be signed within 60 days of the decision's signing and filing. Pursuant to 22 NYCRR 202.48 (b), when parties fail to submit an order or judgment in a timely manner their action is to be deemed abandoned, unless there is good cause reason for the delay. Pursuant to CPLR 3404, supreme court cases that are struck from the calendar and not restored within one year are deemed abandoned and dismissed without costs for neglect to prosecute.

A dismissed action may be restored to the calendar beyond the one year of the statute if the plaintiff establishes a reasonable excuse for the failure to prosecute the action and a lack of{**77 Misc 3d at 296} prejudice to the defendants (Cawthon v Cawthon, 276 AD2d 661, 661 [2d Dept 2000]).

It is well-established that the party seeking to restore an action to the calendar after it is dismissed has the burden of establishing "good cause" for the delay (Madigan v Klumpp, 173 AD2d 593, 593-594 [2d Dept 1991] [the Appellate Division found that the husband failed to show good cause for not submitting the judgment of divorce for over a year where he asserted he [*4]believed the wife was responsible for filing]; see also Seeman v Seeman, 154 AD2d 584, 585-586 [2d Dept 1989] [no good cause found where law firm misplaced or forgot to file an order for more than two years]).

Here, plaintiff offered no explanation for his failure to file a proposed judgment of divorce packet for 12 years. As such, the plaintiff's application is denied: the 2009 action for divorce was abandoned and there was no good cause shown sufficient to restore it to the calendar. Here, either party could have filed the judgment of divorce. Neither party did so. There was no good cause shown for the failure to do so. The action was abandoned. If either party seeks a divorce they must commence a new action.

Stipulation Unenforceable: Statute of Limitations

Pursuant to CPLR 213, separation agreements incorporated but not merged with a divorce decree are governed by the six year statute of limitations applicable to contractual obligations (Bayen v Bayen, 81 AD3d 865, 866 [2d Dept 2011]). Here, it is undisputed that the parties' stipulation was executed more than 12 years ago: the statute of limitations for enforcement where it was not incorporated and not merged into a judgment of divorce has long since passed.

Counsel Fees

22 NYCRR 202.16 (k) (2) requires that motions for counsel fees cannot be heard unless the moving papers include a statement of net worth in the official form. Plaintiff's application did not include a statement of net worth: as such, his request for counsel fees is procedurally defective and is denied.

The plaintiff's remaining contentions are without merit.

Conclusion

Plaintiff's order to show cause is denied.