         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1534
CA 09-00633
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF THE APPLICATION OF DONALD L.L.,
PETITIONER-APPELLANT, FOR THE APPOINTMENT OF A
GUARDIAN OF THE PERSON AND PROPERTY OF JESSIE
D.L., AN ALLEGED INCAPACITATED PERSON.
------------------------------------------------
ROBERT J. MICELI, RESPONDENT.                          OPINION AND ORDER
(APPEAL NO. 1.)
------------------------------------------------
IN THE MATTER OF THE APPLICATION OF DONALD L.L.,
PETITIONER-APPELLANT, FOR THE APPOINTMENT OF A
GUARDIAN OF THE PERSON AND PROPERTY OF JESSIE
D.L., AN ALLEGED INCAPACITATED PERSON.
------------------------------------------------
ROBERT J. MICELI, RESPONDENT.
(APPEAL NO. 2.)
------------------------------------------------
ROBERT J. MICELI, AS GUARDIAN OF THE PERSON AND
PROPERTY OF JESSIE D.L., PLAINTIFF-RESPONDENT,

                    V

DONALD L.L. AND PATRICIA FITZGERALD,
DEFENDANTS-APPELLANTS.
(APPEAL NO. 3.)


FRANK A. ALOI, ROCHESTER, FOR PETITIONER-APPELLANT AND DEFENDANTS-
APPELLANTS.

LAW OFFICES OF RICHARD A. KROLL, ROCHESTER (RICHARD A. KROLL OF
COUNSEL), PARKER LAW OFFICE, PLLC, FOR RESPONDENT AND PLAINTIFF-
RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (David
Michael Barry, J.), entered January 28, 2009. The order, insofar as
appealed from, denied the cross motion of defendants to vacate and set
aside a stipulation dated January 24, 2008, and to amend and resettle
subsequent orders and judgments.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed with costs, plaintiff is awarded attorneys’ fees
on appeal and the matter is remitted to Supreme Court, Monroe County,
for further proceedings.

     Opinion by SCONIERS, J.:   This appeal concerns the issue whether
                                 -2-                          1534
                                                         CA 09-00633

the Equitable Distribution Law (Domestic Relations Law § 236 [B]) is
applicable to a stipulation of settlement, entered during proceedings
pursuant to article 81 of the Mental Hygiene Law, that divides
property in a manner similar to equitable distribution but does not
involve the dissolution of a marriage. We conclude that the Equitable
Distribution Law is not applicable to this case.

      Donald L.L. (defendant) and his wife, the person for whom
plaintiff was, inter alia, appointed guardian (hereafter, defendant’s
wife), were married in 1966. In May 2005, defendant’s wife suffered a
stroke that caused severe brain damage and left her unable to care for
herself. Defendant is also in poor health and is not capable of
caring for his wife. Thus, defendant’s wife lives in the home of
plaintiff, who provides 24-hour care for defendant’s wife. In October
2007, defendant commenced a proceeding pursuant to Mental Hygiene Law
article 81, seeking, inter alia, an order naming the Catholic Family
Center as the guardian of his wife’s person and property. Plaintiff
cross-petitioned for an order naming himself as guardian of
defendant’s wife and her property. During proceedings in Supreme
Court on January 24, 2008, plaintiff and defendant entered into an
oral stipulation of settlement whereby plaintiff would be named the
guardian of the person and property of defendant’s wife, which the
court converted into an order naming plaintiff as the guardian. With
plaintiff acting as guardian of defendant’s wife, plaintiff and
defendant immediately entered into a second oral stipulation of
settlement (hereafter, stipulation of settlement) whereby defendant
and his wife would live separately, with defendant having the right to
visitation. Plaintiff and defendant further stipulated, inter alia,
that the marital property of defendant and his wife would be divided
between them and that defendant would make weekly “maintenance and
support” payments to his wife. The second stipulation included the
following statement: “[Plaintiff and defendant] would like to
stipulate to settle issues of property settlement and spousal support
in the nature of an opting[-]out agreement as the same is provided for
under the Domestic Relations Law. [They] do not intend to make this a
divorce proceeding but would like [the stipulation] to serve as their
agreement as to the issues . . . set forth [herein] and to that extent
would also like to sign a written adoption of the oral stipulation.”

     After the terms of the second oral stipulation were read into the
record, plaintiff and defendant signed a written adoption of the oral
stipulation. In an order and judgment entered April 21, 2008, the
court, inter alia, determined that defendant’s wife was an
incapacitated person, appointed plaintiff as the guardian of the
person and property of defendant’s wife and incorporated by reference
the terms of the stipulation of settlement.

     In September 2008, plaintiff commenced this action seeking to
enforce the stipulation of settlement with respect to the “maintenance
and support” payments by defendant and to void various allegedly
fraudulent transfers between defendant and defendant Patricia
Fitzgerald. Plaintiff moved for, inter alia, a preliminary injunction
enjoining defendants from “dealing” with any of their property pending
resolution of the action. Defendants cross-moved for, inter alia, an
                                 -3-                          1534
                                                         CA 09-00633

order vacating and setting aside the stipulation of settlement. In an
order entered January 28, 2009, the court denied the motion and cross
motion.

     Defendants contend that the court erred in granting relief in the
form of equitable distribution without conducting a hearing on the
economic issues between defendant and his wife. We reject that
contention inasmuch as those economic issues were resolved by the
stipulation of settlement. Furthermore, the record demonstrates that
the stipulation of settlement was the product of extensive
negotiations conducted after full disclosure of economic information.
Therefore, there is no need to remit the matter for the resolution of
economic issues (cf. Matter of Joseph S., 25 AD3d 804, 806).

     The Equitable Distribution Law does not require a different
result. Domestic Relations Law § 236 (B) is “applicable to actions
for an annulment or dissolution of a marriage, for a divorce, for a
separation, for a declaration of the nullity of a void marriage” and
other similar actions (§ 236 [B] [2] [a]). Thus, “[t]he concept of
equitable distribution is written into the laws of the State so as to
apply only in certain cases involving the abrogation of the marital
status” (Yedvarb v Yedvarb, 92 AD2d 591, 592; see also Sperber v
Schwartz, 139 AD2d 640, 642, lv dismissed 73 NY2d 871, lv denied 74
NY2d 606). In the absence of an action for the abrogation of the
marital status, a court cannot “hold [a party] liable to [another
party] . . . solely on the basis of equitable distribution” (Yedvarb,
92 AD2d at 592). Here, however, the court did not hold any party
liable solely on the basis of equitable distribution because
plaintiff, as the guardian of defendant’s wife, and defendant resolved
all economic issues through a negotiated settlement agreement that
included an explicit statement that defendant and his wife were not
divorcing. Therefore, the Equitable Distribution Law is not
applicable to this case (see § 236 [B] [2]; see generally Yedvarb, 92
AD2d 591). In light of our determination, we do not address
defendants’ contention that the written adoption of the stipulation of
settlement did not meet the requirements of Domestic Relations Law
§ 236 (B) (3).

     Contrary to the further contention of defendants, the stipulation
of settlement should not be vacated or reformed. “ ‘[A] stipulation
will not be destroyed without a showing of good cause therefor, such
as fraud, collusion, mistake, accident[] or some other ground of the
same nature’ ” (Matter of Frutiger, 29 NY2d 143, 150). Defendants
contend that, at the time of the stipulation of settlement, defendant
did not understand the nature and consequences thereof. Defendant
stated in open court, however, that he discussed the terms of the
agreement with his attorney and that he understood the terms of the
stipulation of settlement. Defendant also signed a written affidavit
of adoption of the stipulation of settlement that included an
acknowledgment that he understood and agreed to its terms. Therefore,
defendant’s “ ‘unsubstantiated and conclusory allegations that
[defendant] did not understand the significance of the [stipulation of
settlement] . . . do not provide a sufficient basis for vacatur of the
[stipulation of settlement]’ ” (Matter of Titus, 39 AD3d 1203, 1204,
                                 -4-                          1534
                                                         CA 09-00633

lv denied 9 NY3d 804; see generally Matter of Frutiger, 29 NY2d at
150).

     Finally, plaintiff is entitled to attorneys’ fees and costs
associated with defending this appeal pursuant to the terms of the
stipulation of settlement, and we remit the matter to Supreme Court to
determine the amount of reasonable attorneys’ fees incurred (see John
T. Nothnagle, Inc. v Chiariello, 66 AD3d 1524).




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
