State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 522896 

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ELIZABETH ALLARD, Now Known as

ELIZABETH SHEFFER,

Respondent,

v MEMORANDUM AND ORDER

ROBERT THOMAS ALLARD,

Appellant.

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Calendar Date: October 19, 2016

Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

__________

Anthony Buono, Valatie, for appellant.

McNamee, Lochner, Titus & Williams, PC, Albany (Bruce J.

Wagner of counsel), for respondent.

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Garry, J.

Appeal from an order of the Supreme Court (Koweek, J.),

entered August 18, 2015 in Columbia County, which denied

defendant's motion to enforce the terms of the parties'

separation agreement.

In 1989, the parties entered into a separation agreement

that was incorporated, but not merged, into a subsequent judgment

of divorce. Pursuant to the separation agreement, which provides

that plaintiff was "entitled to sole and exclusive possession,

use and ownership of the marital residence," defendant

transferred title to the residence to plaintiff, and plaintiff

refinanced the note and mortgage in her name alone. The

agreement further provides, in relevant part, that "[w]hen and if

the house is sold," defendant and plaintiff are to share equally
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the equity or profit from the sale. Thereafter, in the period

from 1989 to 2007, plaintiff obtained additional loans against

the subject property, significantly increasing the outstanding

balance of the mortgages upon the property. In 2014, defendant

filed a postjudgment motion to enforce the separation agreement,

alleging that plaintiff breached the terms of the agreement by

obtaining the additional loans and thereby encumbering his

contingent interest in the property. Defendant's motion sought,

among other things, an order directing the immediate sale of the

property or, in the alternative, directing plaintiff to pay off

the mortgages on the property. Plaintiff opposed the motion

arguing, as pertinent here, that it was time-barred and lacked

merit. Supreme Court denied defendant's motion as moot and did

not reach the merits of the parties' claims. Defendant appeals.

We find that defendant's motion was properly denied, upon

distinct but similar grounds. There is no dispute that under the

plain language of the agreement, defendant is entitled to a share

of the equity or profits resulting from a sale of the marital

residence only "[w]hen and if" the residence is sold. Thus,

plaintiff is under no obligation to sell the home. Defendant

does not allege that there are any current plans to sell the

residence, and plaintiff states that she never intends to do so. 

Thus, Supreme Court correctly found that defendant was seeking an

opinion "with regard to a possible future event that has not yet

occurred," and that there is no presently existing case or

controversy to be adjudicated. 

Under the doctrine of ripeness, "[w]here the harm sought to

be enjoined is contingent upon events which may not come to pass,

[a] claim to enjoin the purported hazard is nonjusticiable as

wholly speculative and abstract" (Matter of New York State

Inspection, Sec. & Law Enforcement Empls., Dist. Council 82,

AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 240 [1984]; accord Saratoga

County Chamber of Commerce v Pataki, 275 AD2d 145, 158 [2000]). 

Here, the harm that defendant seeks to avoid – that is, the

diminution of his share of the equity or profit that may someday

result from a sale of the residence because of the encumbrances

of plaintiff's loans – will occur only if the residence is

eventually sold, a future contingency that may never come to

pass. Moreover, as plaintiff states that she plans to keep the
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property and leave it to her children in her will, there is no

"practical likelihood . . . that the future contingency will

occur" (Prodell v State of New York, 211 AD2d 966, 967 [1995]). 

Accordingly, defendant's contentions are not ripe for review and

are not justiciable (see Matter of Morris v Ciaramitaro, 13 AD3d

924, 924 [2004]). 

Defendant nevertheless contends that an immediate, noncontingent controversy exists, as the parties' agreement provides

that they will not "at any time in the future incur or contract

any debt, charge or liability whatsoever for which the other

party, or his or her property . . . is now or may become liable." 

Defendant asserts that the loans and mortgages constitute a

present encumbrance on defendant's "property" – that is, his

contingent share of the equity in the residence. Assuming

without deciding that this assertion is valid, defendant's motion

was in any event properly denied, as this claim is time-barred. 

A separation agreement, incorporated but not merged into a

judgment of divorce, is an independent contract legally binding

on the parties (see Merl v Merl, 67 NY2d 359, 362 [1986]; Kleila

v Kleila, 50 NY2d 277, 283 [1980]; Mills v Mills, 22 AD3d 1003,

1003 [2005]; Hoyt v Hoyt, 307 AD2d 621, 622 [2003]), and is thus 

subject to the six-year statute of limitations applied to

contract claims (see CPLR 213 [2]; Merl v Merl, 67 NY2d at 362;

Tauber v Lebow, 65 NY2d 596 [1985]; Chayes v Chayes, 28 AD3d 355,

356-357 [2006]). Contrary to defendant's argument, plaintiff's

loans do not constitute a continuing wrong (compare Jensen v

General Elec. Co., 82 NY2d 77, 85 [1993]), nor does the

"discovery" rule apply to contract claims; rather, the "statutory

period of limitations begins to run from the time when liability

for [a] wrong has arisen even though the injured party may be

ignorant of the existence of the wrong or injury" (ACE Sec.

Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured

Prods., Inc., 25 NY3d 581, 594 [2015] [internal quotation marks

and citation omitted]; see Chayes v Chayes, 28 AD3d at 356-357). 

As defendant's claim accrued, at the latest, on August 6, 2007 –

when plaintiff obtained her most recent loan – and he filed his

notice of motion on October 22, 2014, the motion is time-barred.

We have considered the parties' remaining contentions and

find them to be without merit. 
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Peters, P.J., Egan Jr., Rose and Mulvey, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court