I. Statement Pursuant to CPLR § 2219 [a]

Defendant moves by Order to Show Cause ("OSC") for, inter alia, (i) modification of the parties' January 22, 2021 Final Custody & Parenting Time Agreement (the "Custody Agreement") and June 11, 2021 Stipulation of Settlement (the "Stipulation") to award him sole legal custody and primary physical custody of the parties' three children; (ii) enforcement of the Stipulation to compel the listing and sale of the former marital residence at XX XXX Boulevard, Staten Island; (iii) an order compelling Plaintiff to cure code violations and complete repairs at that property; (iv) direction that the parties equally share the expenses of a landlord-tenant eviction proceeding against the downstairs tenant; and (v) counsel fees. (See Defendant's Affirmation, NY St Cts Filing [NYSCEF] Doc No. 47). Plaintiff opposes and cross-moves to dismiss for improper service, to deny custody modification, to deny the sale relief, to set school enrollment for the 2025-26 year, and for fees. (See Plaintiff's Opposition & Cross-Motion, NY St Cts Filing [NYSCEF] Doc Nos. 70-71.)

Having reviewed the OSC and supporting affirmations (NY St Cts Filing [NYSCEF] Doc Nos. 46-48), the affidavits of service (NY St Cts Filing [NYSCEF] Doc Nos. 66-67), and Plaintiff's opposition and cross-motion papers (NY St Cts Filing [NYSCEF] Doc Nos. 70-71), the Court issues the following Decision & Order.

II. Facts

The parties were married XX XX, 2007 and have three children: CAZ (DOB XX/XX/2011), CZZ (DOB XX/XX/2012), and CGZ (DOB XX/XX/2013). Their Custody Agreement (NY St Cts Filing [NYSCEF] Doc No. 50) and Stipulation (NY St Cts Filing [NYSCEF] Doc No. 51) were incorporated in the Judgment of Divorce (NY St Cts Filing [NYSCEF] Doc No. 52).

A. Educational decision-making and the 2025—26 school year

Defendant avers that, during Fall 2024, the parents discussed high-school options for CAZ and agreed he would take the SHSAT to preserve public-school choices; he further asserts Plaintiff did not register CAZ for the SHSAT, pursued only private yeshiva options, and disclosed in December 2024 that CAZ would sit for the JSAT (private-school test) instead. He contends CAZ did not gain admission to any yeshiva and is now effectively limited to the zoned public options: Susan E. Wagner High School in Staten Island or Sayreville War Memorial High School in New Jersey.

Defendant also alleges a pattern of non-consultation, misrepresentation, and disparagement in the children's presence, and states the children wish to reside primarily with him and attend New Jersey public schools; he expressly asks that an Attorney for the Children ("AFC") be appointed.

Plaintiff counters that the children are thriving under the current custodial regimen and that there is no demonstrated detriment requiring upheaval. She states CAZ has an available [*2]private-school placement (Mazel Day High School) and disputes Defendant's portrayal of the admissions landscape and parental consultation.

B. Remarriage and the former marital residence

Defendant asserts Plaintiff remarried on April 4, 2025 (Exhibit D, marriage certificate) (NY St Cts Filing [NYSCEF] Doc No. 53) and that, under Article XXI of the Stipulation, Plaintiff's exclusive use and occupancy ended upon remarriage and the home must now be listed for sale. Plaintiff does not deny the remarriage, noting it was brief and that she commenced an uncontested divorce from her second husband in May 2025. She argues, however, that the Stipulation's sale provision (Article 21(a)(5)) fixes an outside sale date of June 30, 2027 or an earlier date at her election; she contends nothing in the Stipulation makes remarriage itself a sale trigger.

C. Condition of the premises; tenant; eviction retainer

Defendant avers Plaintiff failed to complete upstairs bathroom work that caused leaks into the tenant's apartment, did not remediate, and allowed a tenant (AM) to remain despite nonpayment since February 2023; he retained Duskin & Crowe as landlord-tenant counsel with a $1,000 retainer and seeks equal cost sharing.

D. Service of process under the OSC

The OSC directed service by personal delivery and overnight delivery to Plaintiff at XX XXX Boulevard by August 4, 2025. (See OSC, NY St Cts Filing [NYSCEF] Doc No. 65.) The record contains an Affirmation of Service attesting to personal service upon Plaintiff at that address on August 1, 2025, at 4:42 p.m. and a separate affidavit attesting to FedEx overnight delivery to the same address. On this showing, the Court finds the OSC's service directive was satisfied. Plaintiff's cross-motion to dismiss for improper service is therefore denied.

III. Conclusions of Law

The parties' submissions correctly frame the governing touchstones. A post-judgment modification of custody requires a showing of a material change in circumstances such that modification is necessary to protect the children's best interests, assessed under the totality of the circumstances; while children's preferences are not dispositive, they may be accorded significant weight commensurate with age and maturity. (See Defendant's Counsel Affirmation, discussing the change-in-circumstances and best-interests framework and children's wishes.)

The Stipulation is a contract, enforceable according to its terms, and may be enforced by motion. (Id., "Plaintiff has failed to comply . . . " section, summarizing contract-enforcement principles and seeking enforcement on motion.) Counsel fees in post-judgment enforcement or modification proceedings may be awarded in the Court's discretion and as authorized by Domestic Relations Law § 238 and any fee-shifting clause in the Stipulation.

A. Custody modification (legal and residential)

The Father has proffered non-frivolous allegations of post-judgment developments concerning educational decision-making (including asserted failures to consult, altered testing/registration plans, and the late-breaking private-school path), along with claims of [*3]disparagement and the children's stated preferences. The Mother, for her part, paints a contrary portrait: stable, flourishing children for whom continuity is paramount and for whom she has secured private-school placement. This clash of sworn narratives squarely presents issues of credibility and best-interests evaluation that cannot be resolved on papers alone.

"To modify an existing custody arrangement, there must be a showing of a change in circumstances subsequent to the initial determination that requires modification to protect the best interests of the children" (see Matter of Thomson v Battle, 99 AD3d 804 [2d Dept 2012] quoting Matter of Dana H. v James Y., 89 AD3d 844 [2d Dept 2011]; citing Matter of Anwar v Sani, 78 AD3d 827 [2d Dept 2010]; Matter of Gurewich v Gurewich, 58 AD3d 628 [2d Dept 2009]; Matter of Fallarino v Ayala, 41 AD3d 714 [2d Dept 2007]).

"Custody determinations should generally be made only after a full and plenary hearing" (see Trazzera v Trazzera, 199 AD3d 855 [2d Dept 2021] quoting Palazzola v Palazzola, 188 AD3d 1081 [2d Dept 2020])

Accordingly, the branch of Defendant's motion seeking a final modification to sole legal and primary physical custody is held in abeyance pending an evidentiary hearing. Given the imminence of the 2025—26 academic year, however, the Court grants targeted interim relief:

1. AFC appointment. The Court appoints an Attorney in a separate Order contemporaneously herewith.

2. Interim decision-making/consultation. Pending further order, neither party shall unilaterally enroll, withdraw, or reassign any child from or to any school without either (a) written consent of the other parent following meaningful consultation or (b) order of the Court. The parties shall comply with their existing contractual obligation to consult in good faith and to address educational issues in an appropriate, civil, and respectful manner. (Cf. Defendant's description of Article I consultation duties.)

3. Status-quo preservation to the extent administratively feasible. The parties shall cooperate to preserve available placements (public or private) for CAZ and CZZ for September 2025 to the extent administratively feasible, without prejudice to the ultimate determination on school selection and residential schedule.

4. Conduct around the children. Each parent is restrained from disparaging the other in the presence or hearing of the children and from using the children as intermediaries for parental communications, consistent with the parties' contractual undertakings. (See Defendant's averments of disparagement and intermediary use.)

The matter is set for an expedited best-interests hearing on the return date previously fixed; counsel shall be prepared to address interim schooling at that time with input from the AFC.

B. Enforcement re: sale of the former marital residence

It is undisputed on this record that Plaintiff remarried on April 4, 2025. Plaintiff argues that, while remarriage ends her exclusive use and occupancy (Article 21(a)(2)), the Stipulation's sale clause (Article 21(a)(5)) fixes June 30, 2027 as the outside sale date "or such earlier date as [*4][Plaintiff] may elect," and that nothing in the contract makes remarriage a mandatory sale trigger. Defendant urges that the cessation of exclusive occupancy upon remarriage "triggers the sale."

Article XXI Paragraph [A] [2] provides as follows:

The Wife shall be entitled to exclusive use and occupancy of the marital residence until June 30th, 2027 or until her remarriage or her cohabitation with an unrelated adult for a period sixty reasonably consecutive days, or her election to buy out Husband's interest pursuant to the terms set forth herein or relocate, whichever event shall first occur. (NY St Cts Filing [NYSCEF] Doc No. 51 at page 29).

Article XXI Paragraph [A] [5] provides as follows:

The marital residence shall be placed on the market for sale on or before June 30, 2027, or such earlier date as the Wife may elect. The Wife shall vacate the marital residence on or before the closing of the sale of marital residence or in accordance with the contract for sale, whichever is later. (see id at page 30).

Article XXI Paragraph [A] [6] addresses the specific mechanics of selling the property, i.e., selecting a real estate agent, listing the property etc. (see id at page 30-31).

The Wife in marrying ZZ on XX XX, 2025 (NY St Cts Filing [NYSCEF] Doc No. 53) terminated her exclusive use and occupancy of the marital residence pursuant to Article XXI Paragraph [A] [2] of the Stipulation of Settlement (NY St Cts Filing [NYSCEF] Doc No. 51 at page 29) and further acted as an election by the Wife pursuant to Article XXI Paragraph [A] [5] to sell the marital residence at a date earlier than June 30, 2027. (see id at page 30).

Accordingly, it is ORDERED that Plaintiff's exclusive use and occupancy of XX XX Boulevard, Staten Island, New York is terminated as of April 4, 2025; and it is further,

ORDERED that Defendant/Husband's request to enforce the Stipulation of Settlement dated June 11, 2021, and direct the Plaintiff/Wife to list the marital residence located at XX XX Boulevard, Staten Island New York, for sale with a mutually selected real estate agent in accordance with Article XXI Paragraph A [2], A [5] and A [6] is GRANTED; and it is further,

ORDERED that Parties shall promptly exchange and preserve all documents relating to the property's condition, violations, and tenancy and meet and confer within 14 days regarding selection of a broker for the sale of the marital residence, located at XX XXX Boulevard, Staten Island New York, as required under the Stipulation; and it is further,

ORDERED that the marital residence, located at XX XXX Boulevard, Staten Island New York, shall be listed with a broker within 60 days of service of this Decision and Order with notice of entry.

C. Repairs, maintenance, and violations

Article XXI obligates the party in possession to maintain the residence and make necessary repairs. Defendant's sworn papers recite long-standing leak and damage issues affecting the downstairs unit and code violations. Plaintiff disputes the characterization but does not deny the maintenance obligation. In aid of the Stipulation, the Court orders Plaintiff to commence forthwith and diligently pursue all necessary repairs and violation cures at XX XXX Boulevard, consistent with Article XXI, and to provide written proof of contractor engagement and a projected remediation schedule within 21 days to Defendant's counsel and to the Court.

D. Tenant and landlord-tenant counsel

Defendant attests he retained Duskin & Crowe to commence an eviction proceeding and paid a $1,000 retainer; he seeks equal cost-sharing. Given the joint ownership and the Stipulation's evident allocation of rental matters, the Court directs the parties to share equally all reasonable fees and disbursements of the landlord-tenant attorney, including reimbursement to Defendant of one-half of the initial $1,000 retainer, without prejudice to later reallocation. Payment shall be made within 14 days of service of this Decision and Order with notice of entry.

E. Counsel fees

Defendant seeks not less than $15,000 in fees pursuant to the Stipulation's default clause and DRL § 238; Plaintiff also seeks fees. On the present submissions, particularly in light of disputed default notices under the Stipulation and the mixed, interim nature of today's relief, the Court reserves on both parties' fee applications pending the hearing, without prejudice to supplemental affidavits of services and proof of any contractually required notices.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is

ORDERED that Plaintiff's cross-motion (Motion No. 002) to dismiss for improper service is DENIED; the Court finds service of the OSC was effected by personal and overnight delivery as directed; and it is further,

ORDERED that the branches of Defendant's motion seeking final modification of legal and physical custody are held in abeyance pending an expedited evidentiary hearing; and it is further,

ORDERED that an Attorney for the Children is appointed forthwith for CAZ (DOB XX/XX/2011), CZZ (DOB XX/XX/2012), and CGZ (DOB XX/XX/2013); and it is further,

ORDERED that, pending further order, neither party shall unilaterally enroll, withdraw, or transfer any child from or to any school without written consent of the other parent after meaningful consultation or order of the Court; both parties shall adhere to their contractual duties of good-faith consultation and respectful communication regarding significant educational matters; and both shall refrain from disparagement and from using the children as messengers; and it is further,

ORDERED that Plaintiff's exclusive use and occupancy of XX XXX Boulevard, Staten Island, New York is terminated as of April 4, 2025; and it is further,

ORDERED that Defendant/Husband's request to enforce the Stipulation of Settlement dated June 11, 2021, and direct the Plaintiff/Wife to list the marital residence located at XX XXX Boulevard, Staten Island New York, for sale with a mutually selected real estate agent in accordance with Article XXI Paragraph A [2], A [5] and A [6] is GRANTED; and it is further,

ORDERED that Parties shall promptly exchange and preserve all documents relating to the property's condition, violations, and tenancy and meet and confer within 14 days regarding selection of a broker for the sale of the marital residence, located at XX XXX Boulevard, Staten Island New York, as required under the Stipulation; and it is further,

ORDERED that the marital residence, located at XX XXX Boulevard, Staten Island New York, shall be listed with a broker within 60 days of service of this Decision and Order with notice of entry; and it is further,

ORDERED that Plaintiff shall commence forthwith all necessary repairs and violation cures at XX XXX Boulevard, Staten Island, New York, consistent with Article XXI, and provide [*5]written proof of contractor engagement and a remediation timetable within 21 days to Defendant's counsel and the Court; and it is further,

ORDERED that the parties shall equally share the reasonable fees and disbursements of their landlord-tenant attorney for proceedings regarding the downstairs tenant, including reimbursement to Defendant of $500.00 [FIVE HUNDRED DOLLARS AND NO CENTS] (one-half of the initial $1,000.00 [ONE THOUSAND DOLLARS AND NO CENTS] retainer) within 14 days of service of this Order with notice of entry, without prejudice to later reallocation; and it is further,

ORDERED that all applications by both sides for counsel fees are reserved to the hearing; and it is further,

ORDERED that all remaining relief in the motion and cross-motion not expressly granted herein is denied without prejudice; and it is further,

ORDERED that the matter is set down for an expedited evidentiary hearing on the previously scheduled return date; counsel shall confer with the AFC in advance and be prepared to address interim educational placement for September should administrative deadlines require immediate adjudication.

This constitutes the Decision and Order of the Court.