        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
