AS v MS

Supreme Court, Richmond County

Decided on February 10, 2026

Index No. REDACTED

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 007) numbered 131-144, 147-154 were read on this motion. The following papers were considered on Defendant's Order to Show Cause dated November 12, 2025 (Motion Sequence #007):

1. Order to Show Cause dated November 12, 2025, with supporting affirmations and exhibits;

2. Affirmation of David J. Seidemann, Esq., in support;

3. Affirmation of Defendant MS in support;

4. Affirmation of Plaintiff AS in opposition;

5. Affirmation of Michael A. Coscia, Esq., in opposition; and

6. All exhibits and papers annexed thereto.

II. Procedural Background and Findings of Fact

This matrimonial action was commenced by Plaintiff on XX/XX/2023. (NY St Cts Filing [NYSCEF] Doc No. 1). Prior thereto, on or about August 3, 2023, the parties executed a Stipulation of Settlement and Agreement (hereinafter "the Agreement"), which comprehensively governed their financial, custodial, and property rights. (NY St Cts Filing [NYSCEF] Doc No. 134).

Pursuant to the Agreement, Plaintiff undertook to pay spousal maintenance in the amount of $4,250 per month (see id at ¶9.2), basic child support in the amount of $3,750 per month (see id at ¶10.1), one hundred percent of the children's tuition and camp expenses up to $84,000 annually (see id at ¶10.5.3 [a]), 78.33% of unreimbursed medical expenses (see id at ¶10.5.2 [b]), and the greater of $50,000 or fifty percent of his business interest (see id at ¶12.5 [a]). The marital residence located at XXXX Street, Staten Island, New York, was titled jointly in the parties' names.

In February 2025, Defendant moved to enforce the Agreement. (NY St Cts Filing [NYSCEF] Doc No. 59). By Decision and Order dated March 26, 2025, this Court granted Defendant's application in its entirety and denied Plaintiff's cross-motion for downward modification. (NY St Cts Filing [NYSCEF] Doc No. 86; 87). Subsequent applications resulted in findings of civil contempt and an award of counsel fees in the amount of $12,550.

Despite these determinations, Plaintiff failed to comply with his obligations. Defendant alleges that Plaintiff ceased paying child support in April 2025 and mortgage payments in May 2025, and failed to satisfy accumulated arrears. A contempt hearing scheduled for September 9, 2025, was unattended by Plaintiff, who allegedly fled the jurisdiction. An arrest warrant was thereafter issued.

Defendant asserts that Plaintiff has relocated to Israel, remains outside the jurisdiction, and owes in excess of $200,000 in unpaid obligations. Plaintiff disputes the amount of arrears, asserts entitlement to contractual credits, and challenges the sufficiency of Defendant's proof. On November 12, 2025, Defendant commenced the instant application seeking (1) transfer of Plaintiff's interest in the marital residence, and (2) sole legal and physical custody of the parties' minor children.

III. Conclusions of Law

A. Application for Transfer of Title to the Marital Residence

Defendant seeks to invoke this Court's equitable powers to compel the transfer of Plaintiff's interest in the marital residence as partial satisfaction of alleged arrears. It is well settled that courts possess broad authority to enforce matrimonial agreements and related orders. However, the exercise of such authority must be grounded in a clear evidentiary record and must comport with principles of equity and procedural regularity.

Here, the record demonstrates that while Plaintiff has been found in contempt and has failed to comply with prior orders, this Court has not fixed, by formal judicial determination, the precise amount of arrears currently outstanding, apart from counsel fees. Defendant's moving papers repeatedly reference "approximately" stated sums and aggregated estimates. No detailed, itemized accounting, invoices, receipts, or documentary substantiation of tuition, medical, or add-on expenses has been annexed. Plaintiff disputes the amounts claimed and asserts entitlement to contractual credits for mortgage payments exceeding $4,250.00.

Moreover, Defendant has submitted no competent evidence establishing the current fair market value of the marital residence. Absent such proof, the Court cannot ascertain whether a forced transfer would be proportionate to the alleged indebtedness or consistent with the parties' contractual allocation of property interests.

Additionally, the mortgage encumbering the property is jointly held by Plaintiff and a non-party guarantor. Any transfer affecting that security interest implicates the rights of a third party not before the Court.

Under these circumstances, the Court declines to impose the extraordinary remedy of divesting Plaintiff of his ownership interest without a judicial fixation of arrears, valuation of the asset, and consideration of third-party interests. Furthermore, the Agreement constitutes an independent contract not yet incorporated into a Judgment of Divorce. A party seeking to modify such an agreement generally must proceed by plenary action, rather than by motion practice within the matrimonial action, as articulated in Sabau v. Sabau, (222 AD3d 1017 [2d Dept 2023]), Matter of Talbot, (104 AD3d 775 [2d Dept 2013]), and Fine v. Fine, (191 AD2d 410 [2d Dept 1993]).

While a party may enforce an agreement by motion, Defendant's request for a wholesale transfer of title constitutes, in substance, a modification of the parties' contractual property rights rather than a straightforward enforcement mechanism.

Accordingly, the Court finds that Defendant has failed to establish entitlement to the requested relief on the present record.

B. Application for Sole Legal and Physical Custody

Defendant also seeks modification of the custodial provisions of the Agreement, requesting sole legal and physical custody of the minor children. It is axiomatic that "the court's paramount concern when making any custody determination is the best interests of the children, as determined upon a consideration of the totality of the circumstances," as articulated in Matter of Abraham v Etienne (218 AD3d 771 [2d Dept 2023]), citing Cohen v Cohen (177 AD3d 848 [2d Dept 2019]), and Eschbach v. Eschbach (56 NY2d 167 [1982]).

Sole custody may be warranted where parents are unable to communicate effectively or where joint decision-making is unworkable, as recognized in Matter of Williams v. Grau (230 AD3d 1539 [4th Dept 2024]) and Matter of King v. King (236 AD3d 1509 [4th Dept 2025]). Defendant contends that Plaintiff's relocation abroad, alleged unavailability, and failure to participate in decision-making render joint custody impracticable. Plaintiff, however, asserts [*2]that Defendant has not utilized the communication and mediation mechanisms prescribed by the Agreement and has failed to demonstrate a concrete breakdown in parental cooperation.

The record contains no documentary evidence of specific attempts by Defendant to invoke the contractual decision-making procedures, nor does it establish discrete instances in which Plaintiff's conduct has endangered or materially impaired the children's welfare.

Moreover, as the Agreement has not yet been incorporated into a Judgment of Divorce, its custody provisions retain their contractual character. Modification of such provisions is procedurally circumscribed and generally requires a plenary action or, at minimum, a developed evidentiary record.

Additionally, appellate authority instructs that significant custody modifications ordinarily require a full evidentiary hearing, as set forth in Trazzera v. Trazzera (199 AD3d 855 [2d Dept 2021]) and Palazzola v. Palazzola (188 AD3d 1081 [2d Dept]).

On the present record, the Court cannot conclude that Defendant has established a substantial change in circumstances or that modification is necessary to serve the children's best interests. Accordingly, Defendant's application for sole legal and physical custody is denied, without prejudice to renewal upon a more developed factual record.

IV. Conclusion and Decretal Paragraphs

The Court is cognizant of Plaintiff's demonstrated pattern of noncompliance and the substantial burdens imposed upon Defendant. Nevertheless, judicial authority must be exercised upon a firm evidentiary foundation and in conformity with established legal principles.

On this record, the extraordinary relief sought by Defendant is not warranted.

Accordingly, it is hereby:

ORDERED , that Defendant's application, by Order to Show Cause dated November 12, 2025, seeking transfer of title to the marital residence located at XXXX Street, Staten Island, New York, is DENIED, without prejudice; and it is further

ORDERED , that Defendant's application for sole legal and physical custody of the parties' minor children is DENIED, without prejudice; and it is further

ORDERED , that this Decision and Order is without prejudice to Defendant's right to seek fixation of arrears, entry of judgment, enforcement relief, or modification upon proper papers and evidentiary support; and it is further

ORDERED , that any relief not expressly granted herein is denied.

Dated: February 10, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT