Buckingham v. Buckingham

126 A.D.3d 553, 3 N.Y.S.3d 921

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 2015
• Docket: 14335 314297/11
• Status: Published

Opinions

Order, Supreme Court, New York County (Lori S. Sattler, J.), entered April 29, 2014, which denied plaintiffs postjudgment motion for distribution of 20% of the net proceeds defendant received from his sales of outstanding stock in Mobile Streams PLC (MS), and denied her request for an award of counsel fees in the amount of $25,000, affirmed, without costs.

The plain and unambiguous language of the parties’ modification agreement makes clear that defendant shall make a distribution to plaintiff only if, among other things, MS or one of its subsidiaries or related companies is sold. Plaintiff does not claim, and there is no evidence, that this condition precedent was met. Accordingly, plaintiff is not entitled to a distribution (see Klewin Bldg. Co., Inc. v Heritage Plumbing & Heating, Inc., 42 AD3d 559, 560 [2d Dept 2007]). Contrary to plaintiffs contention, she was not entitled, under the terms of the modification agreement, to a distribution merely because defendant sold outstanding stock of MS.

The Supreme Court providently exercised its discretion in declining to award counsel fees to plaintiff (see Domestic Relations Law § 238; Hoffman v Hoffman, 81 AD3d 600, 600 [2d Dept 2011]).

We have considered plaintiffs remaining contentions and find them unavailing.

Concur — Friedman, J.R, Sweeny, Feinman and Clark, JJ.