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

231
CA 15-00172
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.


WENDY D. SEARS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STEPHEN J. SEARS, DEFENDANT-RESPONDENT.


DAVIDSON FINK, LLP, ROCHESTER (DONALD A. WHITE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

SCHELL LAW, P.C., FAIRPORT (GEORGE A. SCHELL, SR., OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (John M.
Owens, J.), entered December 31, 2014. The order, insofar as appealed
from, granted defendant’s petition in part by directing plaintiff to
sign certain letters and to execute and deliver a quitclaim deed
transferring certain real property jointly owned by the parties to
defendant.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, and the petition is
denied insofar as it was granted.

     Memorandum: In this postdivorce proceeding, plaintiff wife
appeals from an order that granted defendant husband’s petition
insofar as it sought an order directing the wife to sign certain
letters and to execute and deliver to the husband’s attorney a certain
quitclaim deed, all with the objective of facilitating the husband’s
refinancing of an existing M&T Bank mortgage in relation to 222.5
acres of a 227-acre property jointly owned by the parties and covered
by that mortgage. We now reverse the order insofar as appealed from,
and we deny the husband’s petition to the extent that the court
granted it.

     “A matrimonial settlement is a contract subject to principles of
contract interpretation” (Tallo v Tallo, 120 AD3d 945, 946 [internal
quotation marks omitted]), and “[t]he fundamental, neutral precept of
contract interpretation is that agreements are construed in accord
with the parties’ intent” (Greenfield v Philles Records, 98 NY2d 562,
569). “The best evidence of what parties to a written agreement
intend is what they say in their writing” (Slamow v Del Col, 79 NY2d
1016, 1018). “[A] written agreement that is complete, clear and
unambiguous on its face must be enforced according to the plain
meaning of its terms” (Greenfield, 98 NY2d at 569; see Hall v Paez, 77
                                 -2-                           231
                                                         CA 15-00172

AD3d 620, 621). “When interpreting a contract . . . , the court
should arrive at a construction that will give fair meaning to all of
the language employed by the parties to reach a practical
interpretation of the expressions of the parties so that their
reasonable expectations will be realized” (Trbovich v Trbovich, 122
AD3d 1381, 1383 [internal quotation marks omitted]; see Kass v Kass,
91 NY2d 554, 566-567). Furthermore, “[i]n adjudicating the rights of
parties to a contract, courts may not fashion a new contract under the
guise of contract construction (Marlee Sales Corp. v Manufacturers
Trust Co., 9 NY2d 16)” (Slatt v Slatt, 64 NY2d 966, 967, rearg denied
65 NY2d 785).

     We agree with the wife’s contention that the court, under the
guise of construing and enforcing the parties’ Separation and Property
Settlement Agreement (Agreement) in favor of the husband, rewrote the
Agreement in such a way as to relieve the husband of his explicit
contractual obligations and to defeat the wife’s explicit rights
thereunder. Indeed, the court’s order is irreconcilable with various
provisions of the Agreement, which requires that the wife’s quitclaim
deed of her interest in the 227 acres be held in escrow by the wife’s
attorney pending any refinancing, and which further requires that the
M&T mortgage be discharged of record, or that the wife’s name be
removed from that mortgage as co-obligor, as part of the refinancing
and before the recording of the wife’s quitclaim deed. Most
important, the court’s interpretation of the Agreement permits the
husband to forestall indefinitely the listing of the property for sale
in whole or in part, which is in derogation of a provision of the
Agreement requiring the property to be listed for sale in its entirety
soon after December 31, 2013 if, as has transpired, the husband proved
unable to refinance the M&T mortgage by that date.

     Although the court purported to enforce the Agreement against the
wife, we note that the wife undeniably carried out her pertinent
contractual obligation, which was merely to execute a quitclaim deed
of her interest in the property to the husband and cause that deed to
be held in escrow by her attorney pending the closing of any
refinancing of the existing mortgage in the husband’s name only.
Although the husband argues that the wife’s stance in the matter
violated the covenant of good faith and fair dealing that is implied
in any contract entered into in New York (see generally Dalton v
Educational Testing Serv., 87 NY2d 384, 389, citing Van Valkenburgh,
Nooger & Neville v Hayden Publ. Co., 30 NY2d 34, 45, cert denied 409
US 875), the wife cannot be found to have violated the implied
covenant of good faith and fair dealing by doing exactly what the
Agreement required her to do (see Dalton, 87 NY2d at 389).




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