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

516
CA 12-01970
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


VINCENT D. IOCOVOZZI, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BONNETTE IOCOVOZZI, DEFENDANT-RESPONDENT.


AUDREY BARON DUNNING, ILION, FOR PLAINTIFF-APPELLANT.

LEVITT & GORDON, ESQS., NEW HARTFORD (DEAN L. GORDON OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Herkimer County (Erin P. Gall, J.), dated August 10, 2012.   The
order and judgment granted the motion of defendant for a judgment
determining that the parties’ prenuptial agreement was void.

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

     Memorandum: Plaintiff appeals from an order and judgment
granting defendant’s motion for summary judgment determining that the
parties’ prenuptial agreement (agreement) was void, based on the
allegation in defendant’s first affirmative defense that the agreement
was unenforceable due to plaintiff’s failure to provide her with
relocation expenses pursuant to the terms of the agreement. Contrary
to plaintiff’s contentions, the demand by defendant for relocation
expenses was not defective, notwithstanding a typographical error in
the demand letter, nor did the demand fail to comply with the
procedures outlined in the agreement. The demand letter was sent to
plaintiff’s attorney, and it contained sufficient information to put
plaintiff on notice of defendant’s demand. Plaintiff’s further
contention that defendant’s demand was untimely is raised for the
first time on appeal and is thus not properly before this Court (see
Ciesinski v Town of Aurora, 202 AD2d 984, 985). Finally, we reject
plaintiff’s contention that the court erred in voiding the agreement
in its entirety based on his breach of one provision, i.e., the
provision concerning relocation expenses. Inasmuch as plaintiff
willfully refused to pay for defendant’s relocation expenses pursuant
to the agreement, he cannot now seek to enforce the remainder of the
agreement (see generally Duryea v Bliven, 122 NY 567, 570-571;
Blumberg v Blumberg, 117 NYS2d 906, 909, affd 280 App Div 986;
Birnbaum v Birnbaum, 70 Misc 2d 462, 464).
Entered: June 7, 2013                           Frances E. Cafarell
                                                Clerk of the Court
