SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

443 

CA 13-01875 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ. 

 

MICHAEL JACOBI, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

MELANIE JACOBI, DEFENDANT-RESPONDENT. 

 

PALMER, MURPHY & TRIPI, BUFFALO (THOMAS A. PALMER OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

AMIGONE, SANCHEZ & MATTREY, LLP, BUFFALO (DAVID V. SANCHEZ OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Patrick

H. NeMoyer, J.), entered September 11, 2013. The order, insofar as

appealed from, denied that part of plaintiff’s motion seeking summary

judgment determining that he is entitled to $143,000 as his separate

property upon the sale of the marital residence in Indiana and granted

that part of defendant’s cross motion seeking summary judgment

determining that the proceeds of the sale of the marital residence in

Indiana are to be divided equally between the parties. 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, that part of the motion

seeking summary judgment determining that plaintiff is entitled to

$143,000 as his separate property upon the sale of the marital

residence in Indiana is granted and that part of the cross motion

seeking summary judgment determining that the proceeds of the sale of

the marital residence in Indiana are to be divided equally between the

parties is denied. 

Memorandum: The parties were married in New York shortly after

they entered into a prenuptial agreement (Agreement). They

subsequently relocated to Indiana, and defendant initiated a divorce

action there. During the pendency of the divorce action, plaintiff

commenced this action seeking, among other things, a determination of

his separate property and the parties’ marital property pursuant to

the terms of the Agreement. As limited by his brief, plaintiff

appeals from an order insofar as it denied that part of his motion

seeking summary judgment determining that he is entitled to $143,000

as his separate property upon the sale of the marital residence in

Indiana and granted defendant’s cross motion for summary judgment to

the extent that it sought summary judgment determining that the

marital residence constitutes marital property in its entirety

pursuant to the Agreement, and that the equity or proceeds of the sale
-2- 443 

CA 13-01875 

of the marital residence are to be divided equally between the

parties. Although the Agreement states that “distribution of all

marital property will not be governed by Section 236 of the New York

Domestic Relations Law,” it otherwise provides that it “shall be

interpreted in accordance with New York law.” Under New York law, 

“ ‘[i]t is well settled that a spouse is entitled to a credit for his

or her contribution toward the purchase of the marital residence,

including any contributions that are directly traceable to separate

property’ . . . , even where, as here, the parties held joint title to

the marital residence” (Pelcher v Czebatol, 98 AD3d 1258, 1259). 

Plaintiff established that he contributed $143,000 to the purchase of

the marital residence that was directly traceable to property defined

in the Agreement as separate property. We therefore reverse the order

insofar as appealed from. 

Entered: June 13, 2014 Frances E. Cafarell

Clerk of the Court