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Renga v. Renga 2011 NY Slip Op 6097 (2d Dept, 2011): Won appeal that unallocated personal injury award during marriage is allocated at trial, not on appeal before trial

Angela Renga, respondent, v Gregory Renga, appellant. (Index No. 200809/09)

2010-02664

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2011 NY Slip Op 6097; 2011 N.Y. App. Div. LEXIS 5975


July 26, 2011, Decided

 
NOTICE:
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.    THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

COUNSEL:  [**1] Franklin, Gringer & Cohen, P.C., Garden City, N.Y. (Steven E. Cohen and Jesse Grasty of counsel), for appellant.

Susan Chana Lask, New York, N.Y., for respondent.

JUDGES: MARK C. DILLON, J.P., ARIEL E. BELEN, SANDRA L. SGROI, ROBERT J. MILLER, JJ. DILLON, J.P., BELEN, SGROI and MILLER, JJ., concur.

OPINION

DECISION & ORDER
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Falanga, J.), dated December 22, 2009, as, upon reargument, adhered to its original determination in an order of the same court dated September 1, 2009, granting that branch of the plaintiff's motion which was, in effect, for a determination that the unallocated settlement proceeds of an action to recover damages for medical malpractice received by the parties during their marriage was the parties' separate property.
ORDERED that the order dated December 22, 2009, is reversed insofar as appealed from, on the law, with costs, upon reargument, so much of the order dated September 1, 2009, as granted that branch of the plaintiff's motion which was, in effect, for a determination that the unallocated settlement proceeds of an action  [**2] to recover damages for medical malpractice received by the parties during their marriage was the parties' separate property is vacated, that branch of the plaintiff's motion is denied, and the matter is remitted to the Supreme Court, Nassau County, for a determination in accordance herewith, as to whether the subject settlement proceeds are marital property or separate property.
In 1996, during the parties' marriage, the plaintiff, with the defendant suing derivatively, commenced an action to recover damages for medical malpractice. In 2003, the action was settled, and the parties received an unallocated net settlement in the principal sum of $4.8 million, which was made payable to both parties. The parties deposited the net settlement proceeds into a joint investment account and, in April 2007, allegedly for estate planning purposes, they withdrew a majority of the balance, which they deposited in two relatively equal amounts, into two separate trust accounts, one for the defendant and one for the plaintiff.
In March 2009, the plaintiff commenced the instant action for a divorce and ancillary relief, and in July 2009, she moved, inter alia, for a determination that the net settlement  [**3] proceeds were the parties' separate property and for a hearing to determine the allocation between herself and the defendant of those proceeds. The defendant opposed the motion, arguing that the settlement proceeds had long ago been converted into marital property because the settlement check had been made payable to both parties, the funds had been deposited into a joint investment account, and, in  [*2]  April 2007, the parties had used a portion of the proceeds to fund, in approximately equal amounts, separate trust accounts for each of them. In an order dated September 1, 2009, the Supreme Court determined, in effect, and in pertinent part, that the net settlement proceeds were separate property and that the allocation between the parties would be determined at trial. The Supreme Court further determined that the deposit of the unallocated net settlement proceeds into a joint investment account did not convert those funds into marital property, but that the interest earned thereon may be marital property.
The defendant thereafter moved for leave to reargue, contending that the net settlement proceeds had been presumptively transmuted into marital property subject to equitable distribution,  [**4] and that the plaintiff could not rebut this presumption. In effect, the defendant sought a determination that, as a matter of law, the settlement proceeds were marital property subject to equitable distribution. In the order appealed from the Supreme Court, inter alia, granted leave to reargue, and adhered to its original determination.
Generally, the proceeds from an action to recover damages for personal injuries are considered separate property of the spouse receiving the compensation (see Domestic Relations Law § 236[B][1][d][2]; Crescimanno v Crescimanno, 33 AD3d 649, 822 N.Y.S.2d 310). However, the deposit of separate property into a joint bank account gives rise to a presumption that each party is entitled to a share of the property (see Banking Law § 675[b]; Chamberlain v Chamberlain, 24 AD3d 589, 593, 808 N.Y.S.2d 352; Garner v Garner, 307 AD2d 510, 512, 761 N.Y.S.2d 414). This presumption may be rebutted with clear and convincing evidence that "the account was titled jointly as a matter of convenience, without the intention of creating a beneficial interest, and that the funds in the account originated solely in the separate property of the spouse who claims the separate interest" (Chamberlain v Chamberlain, 24 AD3d at 593; see  [**5] Crescimanno v Crescimanno, 33 AD3d 649, 822 N.Y.S.2d 310; Wade v Steinfeld, 15 AD3d 390, 391, 790 N.Y.S.2d 64).
Here, contrary to the Supreme Court's determination, the parties' deposit of the unallocated net settlement proceeds into a joint investment account gave rise to a presumption that the proceeds were transmuted into marital property (see Banking Law § 675[b]; Crescimanno v Crescimanno, 33 AD3d at 650; Chamberlain v Chamberlain, 24 AD3d at 593). The record on appeal is insufficient to render a determination as to whether the plaintiff can rebut this presumption. We therefore remit the matter to the Supreme Court, Nassau County, for determination of this issue upon the trial of this action.
We decline the plaintiff's request for the imposition of sanctions against the defendant in connection with this appeal (see 22 NYCRR 130-1.1).
DILLON, J.P., BELEN, SGROI and MILLER, JJ., concur.

Renga v. Renga 2011 N.Y. App. Div (2d Dept, 2011)-won appeal that divorce court properly determined child support and denied husband attorney fees

Angela Renga, respondent, v Gregory Renga, appellant. (Index No. 200809/09)

2010-06306

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2011 NY Slip Op 6098; 2011 N.Y. App. Div. LEXIS 5977


July 26, 2011, Decided

 
NOTICE:
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.    THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

COUNSEL:  [**1] Franklin, Gringer & Cohen, P.C., Garden City, N.Y. (Steven E. Cohen, Jesse Grasty, and Michael Mosscrop of counsel), for appellant.

Susan Chana Lask, New York, N.Y., for respondent.

JUDGES: MARK C. DILLON, J.P., ARIEL E. BELEN, SANDRA L. SGROI, ROBERT J. MILLER, JJ. DILLON, J.P., BELEN, SGROI and MILLER, JJ., concur.

OPINION

DECISION & ORDER
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Falanga, J.), dated June 14, 2010, as granted that branch of the plaintiff's motion which was to enjoin and restrain him from withdrawing any funds from an investment account into which the proceeds of a medical malpractice action settlement were deposited to the extent of limiting his withdrawals to the sum of only $4,627 per month and denied those branches of his cross motion which were for awards of pendente lite child support and an attorney's fee.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was to enjoin and restrain the defendant from withdrawing any funds from an investment account into which the proceeds of a medical  [**2] malpractice action settlement were deposited to the extent of limiting his withdrawals to the sum of $4,627 per month; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith; and it is further,
ORDERED that pending a new determination of that branch of the plaintiff's motion which was to enjoin and re-strain the defendant from withdrawing any funds from the subject investment account, so much of the order dated June 14, 2010, as enjoined and restrained the defendant from withdrawing any funds from the subject investment account in excess of $4,627 per month shall remain in effect.
The relevant facts are set forth in a related appeal (see Renga v Renga, ___ AD3d ___, 2011 N.Y. App. Div. LEXIS 5975 [Appellate Division Docket No. 2010-02664; decided herewith]).
An appellate court should rarely modify a pendente lite award, and then " only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires'" (Malik v Malik, 66 AD3d 968, 968, 886 N.Y.S.2d 826, quoting Levakis v Levakis, 7 AD3d 678, 678, 776 N.Y.S.2d 510; see Silver v Silver, 46 AD3d 667, 668, 847 N.Y.S.2d 596;  [**3] Fruchter v Fruchter, 29 AD3d 942, 944, 816 N.Y.S.2d 525). Further, pen-dente lite awards "should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse . . . with due regard for the preseparation standard  [*2]  of living" (Byer v Byer, 199 AD2d 298, 298, 199 N.Y.S.2d 298, 604 N.Y.S.2d 254; see Silver v Silver, 46 AD3d at 668; Levakis v Levakis, 7 AD3d 678, 776 N.Y.S.2d 510). "Any perceived inequities in pendente lite support can best be remedied by a speedy trial, at which the parties' financial circumstances can be fully explored" (Conyea v Conyea, 81 AD3d 869, 870, 917 N.Y.S.2d 874; see Avello v. Avello, 72 A.D.3d 850, 899 N.Y.S.2d 337; Malik v Malik, 66 AD3d 968, 886 N.Y.S.2d 826). Here, in denying that branch of the defendant's cross motion which was for an award of pendente lite child support, the Supreme Court properly considered the defendant's actual reasonable living expenses, and there are no exigent circumstances sufficient to disturb the Supreme Court's determination on this issue (see Malik v Malik, 66 AD3d 968, 886 N.Y.S.2d 826; Silver v Silver, 46 AD3d at 668; Fruchter v Fruchter, 29 AD3d at 944; Levakis v Levakis, 7 AD3d 678, 776 N.Y.S.2d 510). Ac-cordingly, the Supreme Court properly denied that branch of the defendant's cross motion which was for an award of pendente lite  [**4] child support.
The Supreme Court properly denied that branch of the defendant's cross motion which was for an award of an in-terim attorney's fee (see Domestic Relations Law § 237[a]; O'Shea v O'Shea, 93 NY2d 187, 190, 711 N.E.2d 193, 689 N.Y.S.2d 8).
In the related appeal (see Renga v Renga, ___ AD3d ___, 2011 N.Y. App. Div. LEXIS 5975 [Appellate Division Docket No. 2010-02664; decided herewith]), the defendant appealed from so much of an order dated December 22, 2009, as, upon reargument, adhered to its original determination in an order dated September 1, 2009, which, in effect, and in pertinent part, determined that the unallocated net settlement proceeds of a medical malpractice action received by the parties during their marriage in the principal sum of $4.8 million were separate property, and that the allocation of that property between the parties would be determined at trial. We are reversing the order insofar as appealed from on the ground that the parties' deposit of the unallocated net settlement proceeds into a joint investment account, funds made payable to both parties, gave rise to a presumption that the proceeds were transmuted into marital property, and we are remitting the matter to the Supreme Court, Nassau County, for a determination,  [**5] at trial, as to whether the plaintiff can rebut this presumption. Since the determination that the settlement proceeds were separate property, which determination underlies the order appealed from herein, is no longer in effect, we remit this matter to the Supreme Court, Nassau County, for a new determination of that branch of the plaintiff's pendente lite motion which was to enjoin and restrain the defendant from withdrawing any money from an investment account funded with a portion of the subject unallocated net settlement proceeds. In the interim, so much of the order dated June 14, 2010, as enjoined and restrained the defendant from withdrawing any funds from the subject investment account in excess of $4,627 per month shall remain in effect.
We decline the plaintiff's request for the imposition of sanctions against the defendant in connection with this appeal (see 22 NYCRR 130-1.1).
DILLON, J.P., BELEN, SGROI and MILLER, JJ., concur.