        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

325
CA 15-01011
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF THE ESTATE OF ROBERT L.
WILSON, DECEASED.
----------------------------------------
CHRISTINE M. WEAVER, EXECUTRIX OF THE             MEMORANDUM AND ORDER
ESTATE OF ROBERT L. WILSON, DECEASED,
PETITIONER-APPELLANT;

KATHLEEN MARY CAMPBELL, EXECUTRIX OF THE
ESTATE OF MARY K. WILSON, DECEASED,
CLAIMANT-RESPONDENT.


LEONARD G. TILNEY, JR., LOCKPORT, FOR PETITIONER-APPELLANT.

DAVID J. MANSOUR, NIAGARA FALLS, FOR CLAIMANT-RESPONDENT.


     Appeal from an order of the Surrogate’s Court, Niagara County
(Sara S. Farkas, S.), entered January 14, 2015. The order determined
the claim of Mary K. Wilson against the Estate of Robert L. Wilson,
deceased, to be valid.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Mary K. Wilson (claimant), the former wife of Robert
L. Wilson (decedent), submitted a claim against decedent’s estate,
seeking to enforce the terms of a property settlement and separation
agreement that was incorporated but not merged into their judgment of
divorce (hereafter, agreement). The pertinent clause of the agreement
provides that decedent “agrees to pay to [claimant] the sum of One
Thousand Four Hundred Dollars ($1,400) per month as and for a
distributive award for a period of nine years from the date of signing
of this Agreement or until such time as [decedent], for any reason,
discontinues doing business as Cocktail Bob’s Tavern, whichever comes
first. In said event, either party may petition a Court of competent
jurisdiction for maintenance as provided in Article VII herein.” The
agreement does not state what should happen to the payments upon the
death of either party. The estate denied the claim and filed a
petition in Surrogate’s Court seeking judicial settlement of the
claim, and the Surrogate, pursuant to the parties’ stipulation,
determined the matter without a hearing (see generally SCPA 1809).
Petitioner, as executrix of decedent’s estate, now appeals from an
order in which the Surrogate upheld the claim.

     Initially, we note that claimant passed away during the pendency
                                 -2-                           325
                                                         CA 15-01011

of this appeal, and respondent, the executrix of claimant’s estate,
has been substituted as the responding party on appeal.

     Contrary to petitioner’s contention, we conclude that the
Surrogate properly upheld the claim. The validity of the claim
depends on the interpretation of the agreement, and it is well settled
that “ ‘[a] matrimonial settlement is a contract subject to principles
of contract interpretation . . . [, and] a court should interpret the
contract in accordance with its plain and ordinary meaning’ ” (Tallo v
Tallo, 120 AD3d 945, 946; see Anderson v Anderson, 120 AD3d 1559,
1560, lv denied 24 NY3d 913). A contract is ambiguous, however, when
on its face it “is reasonably susceptible of more than one
interpretation” (Chimart Assoc. v Paul, 66 NY2d 570, 573) and, in
deciding whether a contract is ambiguous, the court “ ‘should examine
the entire contract and consider the relation of the parties and the
circumstances under which it was executed’ ” (Kass v Kass, 91 NY2d
554, 566). Finally, “[i]t is well settled that, where a contract is
ambiguous, its interpretation remains the exclusive function of the
court unless determination of the intent of the parties depends on the
credibility of extrinsic evidence or on a choice among reasonable
inferences to be drawn from extrinsic evidence . . . On the other
hand, [where, as here,] the equivocality must be resolved wholly
without reference to extrinsic evidence[,] the issue is to be
determined as a question of law for the court” (P&B Capital Group, LLC
v RAB Performance Recoveries, LLC, 128 AD3d 1534, 1535 [internal
quotation marks omitted]).

     Contrary to the contention of both parties, the Surrogate
properly concluded that the agreement is ambiguous because it is
reasonably susceptible of more than one interpretation. Inasmuch as
the clause at issue fixes an amount to be paid for a tangible marital
asset, is contained in the part of the agreement titled “Equitable
Distribution of Marital Property,” and contains no provision
terminating the payments upon the death of either party, it could be
interpreted in accordance with respondent’s position that it is part
of equitable distribution. It is well settled that, “in the event of
the death of either party, any unpaid equitable distribution is the
right or responsibility of the estate of the deceased ex-spouse”
(Grunfeld v Grunfeld, 255 AD2d 12, 20, mod on other grounds 94 NY2d
696; see Cristando v Lozada, 118 AD3d 846, 847, lv denied 24 NY3d
913). Conversely, the fact that the agreement provides that payments
are to continue “until such time as [decedent], for any reason,
discontinues doing business as Cocktail Bob’s Tavern,” and that
claimant could then seek maintenance, could be interpreted in
accordance with petitioner’s position, i.e., that the parties intended
the payments to be in lieu of maintenance, which would terminate upon
the death of the payor (see Domestic Relations Law § 236 [B] [6] [c];
Hartog v Hartog, 85 NY2d 36, 50). We agree with petitioner that the
Surrogate “ ‘may not by construction add . . . terms, nor distort the
meaning of those used and thereby make a new contract for the parties
under the guise of interpreting the writing’ ” (Vermont Teddy Bear Co.
v 538 Madison Realty Co., 1 NY3d 470, 475). Here, however, based on
our interpretation of the agreement as a whole, we agree with the
Surrogate that the payments are part of a distributive award and thus
                                 -3-                           325
                                                         CA 15-01011

must continue despite the demise of decedent (cf. generally Matter of
Riconda, 90 NY2d 733, 738).




Entered:   April 29, 2016                      Frances E. Cafarell
                                               Clerk of the Court
