                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 8, 2016                   522896
________________________________

ELIZABETH ALLARD, Now Known as
   ELIZABETH SHEFFER,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ROBERT THOMAS ALLARD,
                    Appellant.
________________________________


Calendar Date:   October 19, 2016

Before:   Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

                             __________


     Anthony Buono, Valatie, for appellant.

      McNamee, Lochner, Titus & Williams, PC, Albany (Bruce J.
Wagner of counsel), for respondent.

                             __________


Garry, J.

      Appeal from an order of the Supreme Court (Koweek, J.),
entered August 18, 2015 in Columbia County, which denied
defendant's motion to enforce the terms of the parties'
separation agreement.

      In 1989, the parties entered into a separation agreement
that was incorporated, but not merged, into a subsequent judgment
of divorce. Pursuant to the separation agreement, which provides
that plaintiff was "entitled to sole and exclusive possession,
use and ownership of the marital residence," defendant
transferred title to the residence to plaintiff, and plaintiff
refinanced the note and mortgage in her name alone. The
agreement further provides, in relevant part, that "[w]hen and if
the house is sold," defendant and plaintiff are to share equally
                              -2-                522896

the equity or profit from the sale. Thereafter, in the period
from 1989 to 2007, plaintiff obtained additional loans against
the subject property, significantly increasing the outstanding
balance of the mortgages upon the property. In 2014, defendant
filed a postjudgment motion to enforce the separation agreement,
alleging that plaintiff breached the terms of the agreement by
obtaining the additional loans and thereby encumbering his
contingent interest in the property. Defendant's motion sought,
among other things, an order directing the immediate sale of the
property or, in the alternative, directing plaintiff to pay off
the mortgages on the property. Plaintiff opposed the motion
arguing, as pertinent here, that it was time-barred and lacked
merit. Supreme Court denied defendant's motion as moot and did
not reach the merits of the parties' claims. Defendant appeals.

      We find that defendant's motion was properly denied, upon
distinct but similar grounds. There is no dispute that under the
plain language of the agreement, defendant is entitled to a share
of the equity or profits resulting from a sale of the marital
residence only "[w]hen and if" the residence is sold. Thus,
plaintiff is under no obligation to sell the home. Defendant
does not allege that there are any current plans to sell the
residence, and plaintiff states that she never intends to do so.
Thus, Supreme Court correctly found that defendant was seeking an
opinion "with regard to a possible future event that has not yet
occurred," and that there is no presently existing case or
controversy to be adjudicated.

      Under the doctrine of ripeness, "[w]here the harm sought to
be enjoined is contingent upon events which may not come to pass,
[a] claim to enjoin the purported hazard is nonjusticiable as
wholly speculative and abstract" (Matter of New York State
Inspection, Sec. & Law Enforcement Empls., Dist. Council 82,
AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 240 [1984]; accord Saratoga
County Chamber of Commerce v Pataki, 275 AD2d 145, 158 [2000]).
Here, the harm that defendant seeks to avoid – that is, the
diminution of his share of the equity or profit that may someday
result from a sale of the residence because of the encumbrances
of plaintiff's loans – will occur only if the residence is
eventually sold, a future contingency that may never come to
pass. Moreover, as plaintiff states that she plans to keep the
                              -3-                522896

property and leave it to her children in her will, there is no
"practical likelihood . . . that the future contingency will
occur" (Prodell v State of New York, 211 AD2d 966, 967 [1995]).
Accordingly, defendant's contentions are not ripe for review and
are not justiciable (see Matter of Morris v Ciaramitaro, 13 AD3d
924, 924 [2004]).

      Defendant nevertheless contends that an immediate, non-
contingent controversy exists, as the parties' agreement provides
that they will not "at any time in the future incur or contract
any debt, charge or liability whatsoever for which the other
party, or his or her property . . . is now or may become liable."
Defendant asserts that the loans and mortgages constitute a
present encumbrance on defendant's "property" – that is, his
contingent share of the equity in the residence. Assuming
without deciding that this assertion is valid, defendant's motion
was in any event properly denied, as this claim is time-barred.

      A separation agreement, incorporated but not merged into a
judgment of divorce, is an independent contract legally binding
on the parties (see Merl v Merl, 67 NY2d 359, 362 [1986]; Kleila
v Kleila, 50 NY2d 277, 283 [1980]; Mills v Mills, 22 AD3d 1003,
1003 [2005]; Hoyt v Hoyt, 307 AD2d 621, 622 [2003]), and is thus
subject to the six-year statute of limitations applied to
contract claims (see CPLR 213 [2]; Merl v Merl, 67 NY2d at 362;
Tauber v Lebow, 65 NY2d 596 [1985]; Chayes v Chayes, 28 AD3d 355,
356-357 [2006]). Contrary to defendant's argument, plaintiff's
loans do not constitute a continuing wrong (compare Jensen v
General Elec. Co., 82 NY2d 77, 85 [1993]), nor does the
"discovery" rule apply to contract claims; rather, the "statutory
period of limitations begins to run from the time when liability
for [a] wrong has arisen even though the injured party may be
ignorant of the existence of the wrong or injury" (ACE Sec.
Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured
Prods., Inc., 25 NY3d 581, 594 [2015] [internal quotation marks
and citation omitted]; see Chayes v Chayes, 28 AD3d at 356-357).
As defendant's claim accrued, at the latest, on August 6, 2007 –
when plaintiff obtained her most recent loan – and he filed his
notice of motion on October 22, 2014, the motion is time-barred.
      We have considered the parties' remaining contentions and
find them to be without merit.
                        -4-                  522896

Peters, P.J., Egan Jr., Rose and Mulvey, JJ., concur.



ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
