Egan v. O'Brien

Appellate Division of the Supreme Court of New York

Egan v. O'Brien

291 A.D.2d 244, 736 N.Y.S.2d 871, 2002 N.Y. App. Div. LEXIS 1515

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 7, 2002

StatusPublished

This text of 291 A.D.2d 244 (Egan v. O'Brien) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Egan v. O'Brien, 291 A.D.2d 244, 736 N.Y.S.2d 871, 2002 N.Y. App. Div. LEXIS 1515 (N.Y. Ct. App. 2002).

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Opinion

—Order, Supreme Court, New York County (Marylin Diamond, J.), entered January 22, 2001, which, to the extent appealed from, granted plaintiffs motion to compel plaintiff to turn over certain artwork designated as plaintiffs property pursuant to schedules A and B of the parties’ marital settlement agreement, unanimously affirmed, with costs.

Although the parties’ marital settlement agreement, entitling plaintiff to the artwork here at issue, by its express terms, was not subject to oral modification, defendant, in opposing plaintiff’s motion to compel his turnover of the artwork, contends that the agreement was, in fact, orally modified to permit his retention of the artwork. Defendant’s reliance upon the alleged oral modification was properly found unavailing by the motion court. As noted, the agreement was not, by its terms, subject to oral modification and defendant has failed to raise a triable issue as to the validity of the alleged modification by adducing proof of conduct by the parties unequivocally referable to the alleged modification (see, Rose v Spa Realty Assoc., 42 NY2d 338, 343-344). Nor has defendant adduced evidence of circumstances upon which plaintiff might be estopped [245]*245from relying on the written marital settlement agreement (see, id. at 344). Concur — Tom, J.P., Mazzarelli, Sullivan, Wallach and Marlow, JJ.

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—Order, Supreme Court, New York County (Marylin Diamond, J.), entered January 22, 2001, which, to the extent appealed from, granted plaintiffs motion to compel plaintiff to turn over certain artwork designated as plaintiffs property pursuant to schedules A and B of the parties’ marital settlement agreement, unanimously affirmed, with costs.

Although the parties’ marital settlement agreement, entitling plaintiff to the artwork here at issue, by its express terms, was not subject to oral modification, defendant, in opposing plaintiff’s motion to compel his turnover of the artwork, contends that the agreement was, in fact, orally modified to permit his retention of the artwork. Defendant’s reliance upon the alleged oral modification was properly found unavailing by the motion court. As noted, the agreement was not, by its terms, subject to oral modification and defendant has failed to raise a triable issue as to the validity of the alleged modification by adducing proof of conduct by the parties unequivocally referable to the alleged modification (see, Rose v Spa Realty Assoc., 42 NY2d 338, 343-344). Nor has defendant adduced evidence of circumstances upon which plaintiff might be estopped [245]*245from relying on the written marital settlement agreement (see, id. at 344). Concur — Tom, J.P., Mazzarelli, Sullivan, Wallach and Marlow, JJ.

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Bluebook (online)

291 A.D.2d 244, 736 N.Y.S.2d 871, 2002 N.Y. App. Div. LEXIS 1515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/egan-v-obrien-nyappdiv-2002.

Opinion

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