EXHIBIT(S) - A (Motion #004) - Exhibit A - Plaintiffs' Commencement and Reply Papers July 19, 2019 (2024)

 
Preview
 D: NEW YORK INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019EXHIBIT “A”7 TNDEX NO. 653538/2016NYSCEF DOC. NO. 227 RECEIVED NVSCEE: O7/22/2019SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKnee ee eee eee en ene! xELZBIETA SLEDZIEJOWSKA and JERZYSLEDZIEJOWSKI,Index No.Plaintiffs,-against-MONIKA WROBEL,Defendant.NOTICE OF MOTION FORSUMMARY JUDGMENT IN LIEU OF COMPLAINTPLEASE TAKE NOTICE, that upon the annexed affidavit of Elzbieta Sledziejowska,sworn to on the Ist day of July, 2016, the affirmation of Lawrence M. Gottlieb, Esq., affirmedthe 6th day of July, 2016, the summons herein, dated July 6, 2016, the undersigned, as counselto plaintiffs, Elzbieta Sledziejowska and Jerzy Sledziejowski (collectively, the “Plaintiffs”) willmove this Court at an IAS Motion Submissions Part, Room 130, at the Supreme Court of theState of New York, County of New York, at the Courthouse located at 60 Centre Street, NewYork, New York 10007 on the 31st day of August, 2016, at 9:30 o’clock in the forenoon of thatday, or as soon thereafter as counsel can be heard, for an order:a) pursuant to §3213, granting summary judgment in favor of the Plaintiffs andagainst the defendant Monika Wrobel in the sum of $240,000.00, together with interest fromJune 30, 2010, premised upon the failure to make payment upon an instrument for the paymentof money only to which there is no defense; andb) for such other and further relief as this Court may deem just, proper and equitable.PLEASE TAKE FURTHER NOTICE that pursuant CPLR §3213, and given that morethan the minimum statutory time has been afforded by this motion, answering papers, if any,lof 2INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019shall be served so as to be received by the undersigned no later than ten (10) days prior to thereturn date of this motion.Dated: Scarsdale, New YorkJulyG, 2016TTLIEEi! Gottlieb, Eneys fr Plaintiffs670 White Plains Suite 121Scarsdale, New(914) 725-2600TO:MONIKA WROBELDefendant455 Main Street, Apartment 10ENew York, New York 100442 of 2E FW YORK C F INDEX NO. 653538/2016NYSCEF BOC. NO. 327 RECEIVED NYSCEF: 07/09/2019SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKELZBIETA SLEDZIEJOWSKA and JERZYSLEDZIEJOWSKI,Index No.:Plaintiffs,-against-MONIKA WROBEL,Defendant.AFFIDAVIT OF ELZBIETA SLEDZIEJOWSKASTATE OF NEW YORK )) ss.COUNTY OF DUTCHESS )ELZBIETA SLEDZIEJOWSKA, being first duly sworn, deposes and says:1. I am one of plaintiffs in the above-referenced action. As such, ] ampersonally familiar with the facts as set forth in this affidavit.2. This affidavit is submitted for purposes of obtaining judgment against thedefendant, our former daughter-in -law Monika Wrobel ("Monika"), the former wife ofour son Roman Sledziejowski ("Roman") .3. On July 1, 2010, my husband, the co-plaintiff, Jerzy Sledziejowski("Jerzy") and I, loaned $240,000.00 (the "Loan")to our son, Roman. At that time, Romansigned a promissory note by which he promised to make interest payments on the Loan atthe rate of 5% per year, commencing as of June 30, 2010. He also agreed to repay theLoan after two years, or on June 30, 2012 (the "Maturity Date").4. The Loan was evidenced by a certain promissory note (the "Note"), a copyof which, signed by both me, my husband Jerzy and our son, Roman is annexed asExhibit A.lof 2(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653536/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019: By separation agreement of November 28, 2012, Roman formallyseparated f ont. A copy of thatpacated from Moritica, A Copy of that separation agreement signed by both Roman andMonika, is annexeExhibit B (the “Sepwation Agreement"),6 ‘The Separation Agrcemient provides. in Article XU, 7 {page 19). thal theobligation for the repayment of the Nate wasuned by Monika.7.‘The Maturity Date of Use Note has long passed and the sam.due and owingof $240,000.00 together with interest from Jane), 2010 (none of which has been paid),has not been repaid,8. Despite due demand made by oar attorneys, Monika has refused to pay thesum due and owing pursuant to the terms of the Note.9. - Prentised upon the foregoing, my husband and I respectiuily request thatwe have judgment against Monika Wrobel for the sam of $240,000.00, together withinterést that has accrued from June 30), 2010 at the rate of 5% per year tothe day and dateof the judgment to be entered, together with such other reliel as tie Court may deem just.Swarn to before me thisL day of July. 201GIORGIO VIOLAtucracy Publle + State of Hew YorkWo. 0108257432dan Wastenaster Countyssion Expuas Mat 12. 20202 of 2E FW YORK C F INDEX NO. 653538/2016NYSCEF BOC. NO. 427 RECEIVED NYSCEF: 07/09/2019SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKte nee een ee nen ene nen nen xELZBIETA SLEDZIEJOWSKA and JERZYSLEDZIEJOWSKI,Index No.:Plaintiffs,-against-MONIKA WROBEL,Defendant.xAFFIRMATION OF LAWRENCE GOTTLIEB IN SUPPORT OFSUMMARY JUDGMENT MOTIONLAWRENCE M. GOTTLIEB, an attorney duly admitted to practice law before theCourts of the State of New York, under the penalties of perjury, affirms as follows:1. I am a member of Hass & Gottlieb, the attorneys of record for the plaintiffsElzbieta Sledziejowska and Jerzy Sledziejowski (collectively, the Plaintiffs") in the above-referenced action and as such, am fully familiar with the procedural issues raised in this matter.2. This affirmation is submitted in support of the motion of the Plaintiffs, pursuant toCPLR §3213, for summary judgment in lieu of complaint against the defendant, Monika Wrobel(the "Defendant" or "Monika"), premised upon a default pursuant to an instrument for thepayment of money.3, The facts are as set forth in the accompanying affidavit of Elzbieta Sledziejowska,sworn to on the 1st day of July, 2016 (the "Sledziejowska Aff."). Annexed as Exhibit A to theSledziejowska Aff., is the subject promissory note (the "Note"), executed by RomanSledziejowski ("Roman"), the son of the Plaintiffs, which provided for the payment of interest atthe rate of 5% per annum from June 30, 2010 and which matured on June 30, 2012 (the"Maturity Date").lof 5(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/20194. Annexed as Exhibit B to the Sledziejowska Aff., is that certain separationagreement signed by both Roman and Monika on November 28, 2012 (the "SeparationAgreement"), by which Roman formally separated from Monika. (Sledziejowska Aff. §45-6.)The Separation Agreement provides, in Article XII, §7 (page 19), that the obligation for therepayment of the Note was assumed by Monika.5. Despite the passage of the Maturity Date and due demand, Monika has failed tomake payment upon the Note or any of the interim interest payments. Sledziejowska Aff. §§7-8.Summary Judgment is Appropriate6. It is submitted that summary judgment in favor of the Plaintiffs and against thedefendant Monika Wrobel is appropriate. Without a doubt, the Note is an instrument for thepayment of money only. Likewise beyond dispute, is that it has matured and payment is now dueand owing. Accordingly, the Plaintiffs have established a prima facie case for summaryjudgment. Alard, L.L.C. v. Weiss, 1 A.D.3d 131, 131, 767 N.Y.S.2d 11, 12 (1st Dept. 2003)(having established defendant's execution of the note and default in payment, plaintiff made out aprima facie case for relief pursuant to CPLR §3213); Seaman-Andwall Corp. v. Wright Mach.Andwall Corp v. Wright Mach. Corp, 29 N.Y.2d 617, 273 N.E.2d 138 (1971)(lower court erredin denying plaintiff's motion for summary judgment in lieu of complaint when proceeding ondefault in the terms of a promissory note),7. Premised upon the facts as set forth in the Sledziejowska Aff. as well asapplicable precedent, the Plaintiffs are entitle to the issuance of an order granting summaryjudgment.20f 5(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019The Plaintiffs Are Third-Party Beneficiaries of the Separation Agreement8. It is submitted that the Defendant may argue that the Plaintiffs cannot bring suitdirectly against her because Monika is not a signatory on the Note. This argument must fail. It isclear that by virtue of the Separation Agreement, the Plaintiffs are third-party beneficiaries ofthat agreement. It likewise beyond doubt that the Plaintiffs were the intended beneficiaries of theSeparation Agreement inasmuch as the assumption of the obligation for the Note was a directresult of that agreement and it was thus in the contemplation of the parties, Monika and Roman,that the Plaintiffs, Roman's parents, would benefit.9. The applicable provision of the Separation Agreement could not be more clearthat the Plaintiffs were the intended beneficiaries. It thus provides as follows:7. The parties acknowledge and represent that the Husband[Roman] signed a Promissory Note in favor of Jerzy and ElzbietaSledziejowski, in the sum of Two Hundred Forty Thousand Dollars($240,000.00), plus interest at a rate of 5% per annum, inconsideration of funds loaned to the parties to pay down themarital debt as well as for costs and expenses related to thepurchase of the marital residence. The current amount outstandingin connection with said Promissory Note, inclusive of interest,totals approximately $267,000 as of October, 2013. Wife agrees tobe solely responsible for the repayment of said outstandingdebt.See, Separation Agreement, Exhibit B, page 19, at Article XII, {7 (emphasis supplied).10. Precedent amply supports a finding that the Defendant is directly obligated to thePlaintiffs and accordingly, the Plaintiffs have standing to bring suit directly against Monika.Thus, for example, in Goodman-Marks Associates, Inc. vy. Westbury Post Associates, 70 A.D.2d145, 149, 420 N.Y.S.2d 26, 29 (2d Dept. 1979), it was held that where a benefit to the plaintiffwas deemed to be the direct result of the promised performance, the plaintiff was deemed anintended beneficiary and therefore entitled to maintain a cause of action for its breach. See,w3 0f 5(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019Internationale Nederlanden (U.S.) Capital Corp. v. Bankers Trust Co., 261 A.D.2d 117, 123, 689N.Y.S.2d 455, 460 (1st Dept. 1999)("Third party seeking to recover on a contract must establishthat a binding contract exists between other parties; that this contract was intended for hisbenefit; and that the benefit to him was direct rather than incidental"). City of New York v.Seabury Const. Corp., 4 A.D.3d 124, 125, 771 N.Y.S.2d 508, 509 (1st Dept. 2004)(court onsummary judgment as to liability, properly concluded that plaintiff was an intended third-partybeneficiary).ll. The theory of third-party beneficiaries has likewise been applied to the context ofseparation agreements and the right to sue for the benefits arising therefrom. Thus, in Drake v.Drake, 89 A.D.2d 207, 209, 455 N.Y.S.2d 420, 422 (4th Dept. 1982), the Court held that thetheory of third-party beneficiaries and their right to sue to enforce the terms of a separationagreement was applicable, although circ*mscribed in the context of children suing for thebenefits derived from such agreement.12. It is submitted, however, that no such restriction is applicable here. That is, thePlaintiffs are clearly third-parties who have been specifically recognized to have received rightspursuant to the strict terms of the Separation Agreement. And, as beneficiaries, it is submittedthat they have standing to not only enforce its terms, but to obtain the issuance of an ordergranting summary judgment with respect to the obligation evidenced by the Note to which thereis no defense,13. Premised upon the foregoing, the Plaintiffs respectfully request that summaryjudgment be granted and that judgment be entered in their favor and against Monika Wrobel forthe sum of $240,000.00 together with interest at the rate of 5% per annum from June 30, 2010.4 of 5(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019Dated: Scarsdale, New YorkJuly@, 20165 of 5F ED NEW YORK E INDEX NO. 653538/2016NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 07/19/2019EXHIBIT A(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653536/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019PROMISSORY NOTEBetweenJerzy Sledziejowski and Elzbieta Sledziejowska of 132 Todd Hil] Road, Lagrangeville, NY 12540(hereinafter called the “Lender”).andRoman J. Sledziejowski of 195 Evan Drive Ossing, NY 10562 (hereinafter called the “Lender”).Whereas- the Borrower has applied to the Lender for a loan facility (hereafter the “Facility”)- and the Lender has agreed to make the Facility available to the Borrower under the terms andconditions set forth in this agreement (hereinafter called the “Agreement”).HEREFORE IT IS AGREED AND CONVENED BETWEEN THE PARTIES AS FOLLOWS:Asticle | - FacilityThe Lender hereby makes available to the Borrower a Facility of United States dollars in the amount ofUSD 240,000.00 under the terms and conditions of this agreement,The Lender shall place the funds at Borrower’s disposal on July 1, 2010 (hereinafter the “FacilityIssuance Date”)The Borrower hereby acknowledges that the Borrower is legally indebted to the Lender in accordancewith the terms and conditions as set out herein,Article 2 — Other FacilitiesAny amount owing by the Borrower to the Lender as of the Facility Issuance Date shall nat be affectedby this AgreementArticle 3 — Execution of the AgreementThe Facility will be available for a single drawdown or multiple drawdowns to take place on theFacility Issuance Date.The Borrower may use the proceeds from the drawdown for any purposes.Drawdown may be paid directly to the borrower or according to borrower’s instructions.Article 4 ~ InterestInterest will begin to accrue on June 30, 2010.The Borrower undertakes to pay interest (hereinafter the “Interest”) on the amount borrowed less anyamounts repaid (hereinafter the Principal”) in an amount equal to 5% per annum.(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653536/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019On any date on which a part of the Principal is repaid, the interest accrued on that part of the Principalrepaid will be due. If the entire Principal is repaid, the interest accrued up to the date of the repaymentis due with the repayment of the entire Principal,Article 5 — RepaymentThe Borrower will be required to repay the outstanding Principal on June 30, 2012 (the “Due Date”).The Borrower, with the permission of Lender, may repay the Principal in full or in part at anytime priorto the Due Date.Article 6 — CurrencyThe payment of the Principal and the Interest and other amounts that may be payable under thisAgreement by the Borrower to the Lender shal! be made in United States dollars,Article 7 — RepresentationThe Borrower represents and warrants that this Agreement will not breach any other agreement towhich the Borrower is a party,The Lender represents and warrants that entering into this Agreement does not violate any provisions ofJaw under which the Lender is incorporated nor violates its Articles of Association,Article 8 — Event of DefaultIf any of the following events occurs, the Lender is entitled, upon written notice, to demand immediatepayment of the Principal not paid plus accrued interest:- the representations of the Borrower are incorrect as of the date of this Agreement;- the Interest due and payable is in default for 30 days or more, or;- the Borrower has applied for the appointment of a receiver or liquidator of the Company.Article 9 — AccelerationPrincipal and all amounts will be due and payable by the Borrower in case of default under thisAgreement not remedied within 15 days, insolvency or liquidation of the Borrower, in case of seizureof any assets of the Borrower or in case of any event or condition which gives reasonable grounds forthe Lender to conclude the Borrower will be unable to perform or observe its obligations under thisAgreement.Article 10 — Security of the loanLoan shall be secured by any and all possessions of the borrower. It has been mutually agreed that alien for the amount of the Loan shall be recorded on borrower’s primary residence, located at 195 EvanDrive, Ossining, NY 10562,Article 11 ~ MiscellaneousAny modification or changes to this Agreement shall be in writing. This Agreement shall be bindingupon the parties, their respective legal representatives, successors and assignees, This Agreementcontains the entire understanding of the parties with respect to the subject matter thereof. ThisAgreement may be executed in multiple counterparts all of which will be considered part of thisAgreement.INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019Article | | - Governing Law and DisputesThe validity, construction, interpretation and enforcement of this Agreement and all rights andobligations hereunder shal! be governed by the laws of the State of New York.we a :fan ae OLco Roman Sledziejowski, BorrowerElzbieta Sledziejowska, Lenderteu VvE W YORK INDEX NO. 653538/2016NYSCEF BOC. NO. &27 RECEIVED NYSCEF: 07/09/2019EXHIBIT B(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019STIPULATION OF SETTLEMENT AND AGREEMENTBETWEENMONIKA WROBELANDROMAN SLEDZIEJOWSKIKeith M. Brown, Esq.NOVENSTERN, FABRIANI & GAUDIO, LLPAttorneys for Plaintiff69 South Bedford RoadMt. Kisco, NY 10549(914) 241-2400ROMAN SLEDZIEJOWSKI, Pro SeDefendant195 Evan DriveOssining, NY 106562(917) 673-6848(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF WESTCHESTERpn emeecnenuicinneonenmnenenqnesesmeennnnnanuiuunanmennmamnnaniamist: xSTIPULATION OFMONIKA WROBEL, SETTLEMENT ANDPlaintiff, AGREEMENT.- against - Index No. 4563/12ROMAN SLEDZIEJOWSKI, Assigned to:Hon. JSS.C.Defendant.ee nnn xXdhSTIPULATION OF SETTLEMENT AND AGREEMENT, made this 6 day ofNovember, 2012, by and between MONIKA WROBEL, residing at 195 Evan Drive,Ossining, New York (hereinafter "Wife" or "Mother") and ROMAN SLEDZIEJOWSKI,residing at 195 Evan Drive, Ossining, New York (hereinafter "Husband" or "Father").WHEREAS, the parties were duly married to each other on June 26, 2003, in theCity of New York, County of New York, and State of New York; andWHEREAS, there are no children of the marriage, and there are no expectedchildren of the marriage; andWHEREAS, certain irreconcilable differences have arisen between the parties asa result of which they are living separate and apart from each other; andWHEREAS, the parties desire to fix their respective financial and property rights,and the privileges and obligations in all matters with respect to each other arising out ofthe marital relationship and otherwise; and(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019WHEREAS, the parties are entering into this Agreement of their own free will andwithout force, coercion or duress of whatever nature; andWHEREAS, each party fully understands the terms, covenants and conditions ofthis Agreement, and after due deliberation, accepts and agrees to such terms,covenants and conditions; andWHEREAS, the parties having had explained to them the provisions of lawaffecting financial and property rights of spouses, including those rights under any law;andWHEREAS, the parties hereto warrant and represent to each other that they, andeach of them, fully understands all the terms, covenants, conditions, provisions andobligations to be performed or contemplated by each of them hereunder, and eachbelieves the same to be fair, just and reasonable and to be in his or her respective bestinterests; andWHEREAS, because of irreconcilable differences between them, the partieshave separated, and are presently, or shortly will be, living separate and apart, anddeem it to be for their mutual benefit, that there should be a binding Agreement betweenthem defining and finally and permanently settling their respective rights and interests inand to all debts, liabilities, funds, assets and property of whatsoever kind now owned orhereafter to be owned by either or both of them, settling all rights of support andmaintenance and other rights and obligations arising out of their marital relationship.NOW, THEREFORE, in consideration of the promises and agreementshereinafter set forth, it is hereby stipulated, covenanted and agreed by and between theparties, as follows:(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019ARTICLE |NO MOLESTATIONNeither party shall in any way molest, malign, disturb or trouble the other orinterfere with the peace and comfort of the other or compel the other to associate,cohabit or dwell with him or her by any action or proceeding for restoration of conjugalrights or by any means whatsoever. Neither party shall, directly or indirectly, makestatements to each other or to any other persons which are derogatory of the otherparty.ARTICLE IISEPARATE RESIDENCEIt is, and shall be, lawful for the parties hereto at all times to live separate andapart from each other and to reside from time to time at such place as each of suchparties may see fit and to contract, carry on and engage in any employment, businessor trade, which either may deem fit, free from control, restraint, or interference, direct orindirect, by the other in all respects as if such parties were sole and unmarried.ARTICLE IllSEPARATE OWNERSHIP1. Except as may be otherwise expressly set forth in this Agreement, eachparty shall own, free of any claim or right of the other, all of the items of property, real,personal and mixed, of any kind, nature or description and wheresoever situate, whichare now in his or her name, control or possession, with full power to him or to her to3(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019dispose of the same as fully and effectually in all respects and for all purposes as if heor she were unmarried.2. It is the intention of the parties by this Agreement to effectuate a fullproperty settlement between them and to divide equitably their property pursuant to theLaws of the State of New York effective as of the date hereof.3. Each party waives any and all rights which he or she may have to adistributive award or an award of equitable distribution in respect of any propertyacquired by the other or acquired jointly either before or during the marriage except asexpressly provided for herein. Each party waives any and all rights which he or shemay have in respect to any property acquired by the other party individually after thedate of commencement of the instant action for divorce; to wit: October 3, 2012 andeach agrees never to seek through judicial proceedings or otherwise a distributiveaward or an award of equitable distribution with respect to any property acquired by theother party except as expressly provided for herein.4. Except as otherwise provided herein, the parties agree that any propertyacquired by a party after the date of commencement of this action, to wit: October 3,2012, shall be his or her separate property.5. Each party acknowledges that the division of the parties’ marital propertyis fair and reasonable.ARTICLE IVRELEASES1. Except as otherwise provided for in this Agreement, the Wife agrees torelease, and hereby does release, any and all claims of the Wife to or upon the property4(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019of the Husband, whether real or personal and whether now owned or hereafteracquired, to the end that he shall have free and unrestricted right to dispose of hisproperty now owned or hereafter acquired, free from any claim or demand of the Wifeand so that his estate and all income therefrom derived or to be derived shall go andbelong to the person or persons who become entitled thereto by gift, devise, bequest,intestacy, administration or otherwise, as if the Wife had died during the lifetime of theHusband and, without in any manner limiting the foregoing, the Wife expresslyrelinquishes any and all rights in the estate of the Husband and expressly relinquishesany and all right of election to take any share of the estate of the Husband, including,without limiting the foregoing, any right of election pursuant to the provisions of §5-1.1Aof the Estates, Powers and Trusts Law of the State of New York (the “EPTL”) orpursuant to any other law of any jurisdiction as said laws may now exist or mayhereafter be amended, the right to dower, a reasonable share, a widow's allowance,community property, statutory set-off, whether pursuant to the provisions of §5-3.1 ofthe EPTL or the laws of any other jurisdiction, or otherwise, the right to homesteadbenefits, the right to contest the validity of any will or any bequest or devise containedtherein and any and all other right and interest in any real or personal property of whichthe Husband may die seized or possessed, and the Wife renounces and disclaims, andcovenants to renounce and disclaim, except as otherwise specifically set forth in thisAgreement: (a) all interest of the Wife under any will or trust agreement executed byHusband prior to the execution of this Agreement and any right of the Wife to serve asexecutor or trustee under any such will; (b) all interest of the Wife in the proceeds of anylife insurance policy on the life of the Husband; (c) all interest of the Wife under any5(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019pension, retirement, death benefit, stock bonus or profit-sharing plan, with respect towhich the Husband was a participant or member, and (d) any right of the Wife under thelaws or practice of any jurisdiction to act as guardian, conservator or committee of theproperty of the Husband in the event of the incompetency of the Husband oradministrator of the estate of the Husband in the event of the death of the Husbandintestate.2. The Wife hereby further agrees to execute any and all documents whichshall be required, at any time, and from time to time, by any or all jurisdictions in orderthat such renunciation and disclaimer shall be effective as though the Wife hadpredeceased the Husband, including, without limiting the generality of the foregoing, therenunciation and affidavit of renouncing party referred to in §2-1.11 of the EPTL. TheWife also agrees that in the event of her death subsequent to the death of the Husband,or of her incompetency or incapacity, such documents, including the renunciation andaffidavit of renouncing party referred to in §2-1.11 of the EPTL, shall be made on theWife’s behalf by her personal representative or committee or conservator. If,notwithstanding the renunciation and disclaimer referred to in this Article, the Wifereceives any right, title or interest in any property so renounced or disclaimed for anyreason whatsoever, then, the Wife shall immediately transfer all such right, title orinterest to the estate of the Husband.3. Except as otherwise provided for in this Agreement, the Husband agreesto release, and hereby does release, any and all claims of the Husband to or upon theproperty of the Wife, whether real or personal and whether now owned or hereafteracquired, to the end that she shall have free and unrestricted right to dispose of her6(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019property now owned or hereafter acquired, free from any claim or demand of theHusband and so that her estate and all income therefrom derived or to be derived shallgo and belong to the person or persons who become entitled thereto by gift, devise,bequest, intestacy, administration or otherwise, as if the Husband had died during thelifetime of the Wife and, without in any manner limiting the foregoing, the Husbandexpressly relinquishes any and all rights in the estate of the Wife and expresslyrelinquishes any and all right of election to take any share of the estate of the Wife,including, without limiting the foregoing, any right of election pursuant to the provisionsof §5-1.1A of the Estates, Powers and Trusts Law of the State of New York (the “EPTL”)or pursuant to any other law of any jurisdiction as said laws may now exist or mayhereafter be amended, the right to dower, a reasonable share, a widower’s allowance,community property, statutory set-off, whether pursuant to the provisions of §5-3.1 ofthe EPTL or the laws of any other jurisdiction, or otherwise, the right to homesteadbenefits, the right to contest the validity of any will or any bequest or devise containedtherein and any and all other right and interest in any real or personal property of whichthe Wife may die seized or possessed, and the Husband renounces and disclaims, andcovenants to renounce and disclaim, except as otherwise specifically set forth in thisAgreement: (a) all interest of the Husband under any will or trust agreement executedby Wife prior to the execution of this Agreement and any right of the Husband to serveas executor or trustee under any such will; (b) all interest of the Husband in theproceeds of any life insurance policy on the life of the Wife; (c) all interest of theHusband under any pension, retirement, death benefit, stock bonus or profit-sharingplan, with respect to which the Wife was a participant or member, and (d) any right of7(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019the Husband under the laws or practice of any jurisdiction to act as guardian,conservator or committee of the property of the Wife in the event of the incompetency ofthe Wife or administrator of the estate of the Wife in the event of the death of the Wifeintestate.4. The Husband hereby further agrees to execute any and all documentswhich shall be required, at any time, and from time to time, by any or all jurisdictions inorder that such renunciation and disclaimer shall be effective as though the Husbandhad predeceased the Wife, including, without limiting the generality of the foregoing, therenunciation and affidavit of renouncing party referred to in §2-1.11 of the EPTL. TheHusband also agrees that in the event of his death subsequent to the death of the Wife,or of his incompetency or incapacity, such documents, including the renunciation andaffidavit of renouncing party referred to in §2-1.11 of the EPTL, shall be made on theHusband’s behalf by his personal representative or committee or conservator. If,notwithstanding the renunciation and disclaimer referred to in this Article, the Husbandreceives any right, title or interest in any property so renounced or disclaimed for anyreason whatsoever, then, the Husband shall immediately transfer all such right, title orinterest to the estate of the Wife.5. Except as otherwise provided for in this Agreement, the Wife herebyconsents to the Husband's election to waive a qualified joint and survivor annuity formof benefit and a qualified pre-retirement survivor annuity form of benefit under any planof deferred compensation to which §401(a)(11)(B) of the Internal Revenue Code of1986 as amended (the “Code”) and/or §205(b)(1) of the Employee Retirement IncomeSecurity Act of 1974 (“ERISA”) shall apply and in which the Husband currently or8(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019hereafter may be deemed a vested participant within the meaning of §417(f)(1) of theCode and §205(h)(1) of ERISA. The Wife further consents to the Husband’s currentand future designation of any alternative form of benefit and of beneficiaries other thanthe Wife under any of such plans (and to any revocation and/or modification of suchdesignations) including any of such plans referred to in §401(a)(11)(B)(iii) of the Code or§205(b)(1)(C) of ERISA. The Wife hereby further agrees to execute any and alldocuments or forms which shall be required, at any time, and from time to time, by anyor all such plans, including but not limited to, any questions required by §417(a)(2) ofthe Code or §205(c)(2) of ERISA to effect the payment of benefits in this manner. TheWife hereby acknowledges that she understands the effect of the Husband's electionsand she consents thereto. The Wife further acknowledges that she understands that,absent the consent contained in this paragraph, she would have the right to limit herconsent to the designation by the Husband of a specific beneficiary or a specific form ofbenefits, and the Wife hereby voluntarily elects to relinquish both such rights.6. Except as otherwise provided for in this Agreement, the Husband herebyconsents to the Wife’s election to waive a qualified joint and survivor annuity form ofbenefit and a qualified pre-retirement survivor annuity form of benefit under any plan ofdeferred compensation to which §401(a)(11)(B) of the Internal Revenue Code of 1986as amended (the “Code”) and/or §205(b)(1) of the Employee Retirement IncomeSecurity Act of 1974 (“ERISA”) shall apply and in which the Wife currently or hereaftermay be deemed a vested participant within the meaning of §417(f)(1) of the Code and§205(h)(1) of ERISA. The Husband further consents to the Wife’s current and futuredesignation of any alternative form of benefit and of beneficiaries other than the9(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019Husband under any of such plans (and to any revocation and/or modification of suchdesignations) including any of such plans referred to in §401(a)(11)(B)(iii) of the Code or§205(b)(1)(C) of ERISA. The Husband hereby further agrees to execute any and alldocuments or forms which shall be required, at any time, and from time to time, by anyor all such plans, including but not limited to, any questions required by §417(a)(2) ofthe Code or §205(c)(2) of ERISA to effect the payment of benefits in this manner. TheHusband hereby acknowledges that he understands the effect of the Wife's electionsand he consents thereto. The Husband further acknowledges that he understands that,absent the consent contained in this paragraph, he would have the right to limit hisconsent to the designation by the Wife of a specific beneficiary or a specific form ofbenefits, and the Husband hereby voluntarily elects to relinquish both such rights.7. Except as otherwise provided for in this Agreement, in the event thatfollowing the effective date of this Agreement, the Wife is the beneficiary under any planof deferred compensation to which §401(a)(11)(B) of the Code and/or §205(b)(1) ofERISA shall apply and in which the Husband currently or hereafter may be deemed avested participant within the meaning of §417(f)(1) of the Code and §205(h)(1) ofERISA, the Wife shall pay any and all proceeds received or to be received by her asabeneficiary under such plan, to the estate of the Husband within fifteen (15) days of theWife’s receipt thereof.8. Except as otherwise provided for in this Agreement, in the event thatfollowing the effective date of this Agreement, the Husband is the beneficiary under anyplan of deferred compensation to which §401(a)(11)(B) of the Code and/or §205(b)(1)of ERISA shall apply and in which the Wife currently or hereafter may be deemed a10(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019vested participant within the meaning of §417(f)(1) of the Code and §205(h)(1) ofERISA, the Husband shall pay any and all proceeds received or to be received by himas a beneficiary under such plan, to the estate of the Wife within fifteen (15) days of theHusband's receipt thereof.9. Except for the obligations, promises and agreements herein set forth andto be performed by the parties hereto, which are hereby expressly reserved, each of theparties hereto hereby, for himself and herself and for his or her legal representatives,forever releases and discharges the other of them and his or her heirs and legalrepresentatives from any and all debts, sums of money, accounts, contracts, claims,cause or causes of action, suits, dues, reckoning, bonds, bills, specialties, covenants,controversies, agreements, promises, variances, trespasses, damages, judgments,extents, executions and demands whatsoever, in law or in equity, which each of themhad, now has or hereafter can, shall or may have by reason of any matter from thebeginning of the world to the execution of this Agreement.ARTICLE VLEGAL INTERPRETATIONThis Agreement and all of the rights and obligations of the parties hereundershall be construed according to the laws of the State of New York as an Agreementmade and to be performed within the State.11(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019ARTICLE VIINDEPENDENT COVENANTSEach of the respective rights and obligations of the parties hereunder shall bedeemed independent and may be enforced independent of any of the other rights andobligations set forth herein.ARTICLE VilIMPLEMENTATIONThe Husband and Wife shall, at any and all times, upon request by the otherparty or his or her legal representatives, promptly make, execute and deliver any and allsuch other and further instruments as may be reasonably necessary for the purpose ofthis agreement, without charge therefor.ARTICLE VillENTIRE UNDERSTANDINGThis Agreement contains the entire understanding of the parties with respect tothe subject matter of this Agreement and the parties hereby acknowledge that therehave been and are no representations, warranties, covenants or undertakings otherthan those expressly set forth herein.12(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019ARTICLE IXSEVERABILITYIf any provision of this Agreement is held to be invalid or unenforceable, all otherprovisions shall, nevertheless, continue in full force and effect.ARTICLE XFULL DISCLOSURE AND LEGAL REPRESENTATION AND FEES1. The parties represent to each other that each of them has had a fullopportunity to read this Agreement, that each of them understands the contents of thisAgreement, and that this Agreement is not entered into as a result of any fraud, duress,or undue influence exercised by either party upon the other or by any other person orpersons upon either of them. Each party has made independent inquiry into thefinancial circ*mstances of the other. Both parties agree that this Agreement has beenachieved based upon honest negotiations between themselves, and each partyacknowledges that he or she is relying upon such negotiations between themselves inentering into this Agreement.2. The parties represent to each other that each of them has had a fullopportunity to read this Agreement, that each of them understands the contents of thisAgreement, and that this Agreement is not entered into as a result of any fraud, duress,or undue influence exercised by either party upon the other or by any other person orpersons upon either of them. The parties acknowledge that they each have a right tomake an independent inquiry into the financial circ*mstances of the other by obtainingdocumentary discovery. Both parties acknowledge that they have made limited13(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019independent inquiry into the financial circ*mstances of the other. Both parties agreethat this Agreement has been achieved based upon disclosure received and honestnegotiations between themselves. Both parties acknowledge that they are aware oftheir right to receive sworn Net Worth Statements from each other under the DomesticRelations Law of the State of New York, and hereby acknowledge the exchange of suchstatements.3. The Wife acknowledges that she has been advised of her right to have theHusband's business interests and real estate holdings valued by a licensed real estateappraiser/forensic evaluator to determine its current fair market value, and has electednot to have said business interests and real estate holdings valued/appraised and hasadvised her attorneys not to undertake any further discovery with respect to this matter.4, The Wife represents, and the Husband acknowledges, that the Wife hasbeen represented by Keith M. Brown, Esq., NOVENSTERN FABRIANI & GAUDIO, LLP,in the negotiation, preparation, and execution of this Agreement. The Husbandrepresents and acknowledges that he has been advised by Wife's attorneys to retainindependent legal counsel of his own selection, by letter; that Wife's attorneys representthe Wife and do not represent him; and that he should review the present Agreementwith an attorney of his own selection. Husband represents and acknowledges that hehas had an adequate opportunity to review the present Agreement with an attorney, buthas elected to proceed in this matter on his own behalf, without his own attorney.Husband acknowledges that he has had a full and complete opportunity to review thepresent Agreement with legal counsel. The Husband represents and warrants that he isentering into the present Agreement freely, willfully and voluntarily. Husband14(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019acknowledges that he has had extensive conversations with Wife over the course ofseveral months concerning the terms and provisions of this Agreement, and that he hasnegotiated said Agreement directly with Wife.5. The Husband represents, and the Wife acknowledges, that the Husbandhas appeared pro se in this matter, and has elected not to consult with an attorneyregarding the terms contained in this Agreement. The Husband is aware that he hadthe right to be represented by separate counsel or to consult an attorney and he hashad ample time to do so, and he has elected to represent himself. He acknowledgesthat he has been urged to retain counsel to represent him in the negotiation and reviewof this Agreement and his decision to appear pro se has been made after carefulreflection and consideration. The Husband acknowledges that he has not received anylegal advice of any kind regarding this matrimonial matter or the preparation orexecution of this Separation Agreement from KEITH M. BROWN, ESQ.), or from anyonein the offices of NOVENSTERN FABRIANI & GAUDIO, LLP. The Husbandacknowledges that this Agreement is fair and reasonable in view of all factors existingbefore and at the time of its execution, including but not limited to, his past and futureearning capacity. Husband waives his right to challenge this Agreement and waives histight to assert any claim of duress, undue influence or unconscionability, or claims thatthe Agreement is not fair and reasonable.6. Except as otherwise set forth herein, each of the parties shall be solelyresponsible for the payment of his or her own counsel fees, accounting fees, if any, anddisbursem*nts incurred in connection with the legal services rendered with respect tothe negotiation and preparation of this Agreement, and with respect to any pending or15(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019future action for divorce, including any and all legal fees due to any prior counsel foreach of them.7. The parties acknowledge that they have been advised by their attorneys, ifany, to have the terms and provisions of the present Agreement reviewed by anaccountant with respect to any all income tax implications associated with issuesaddressed in the Agreement, and the parties acknowledge and represent that they havehad a full and complete opportunity to review said Agreement with an accountant orother appropriate financial professional. The parties acknowledge that they are notrelying upon any statements or advice given to them by their respective attorneys withrespect to tax issues.ARTICLE XICOUNSEL FEES ON DEFAULT1. Should either party have any claim against the other arising from analleged breach of this Agreement and should such alleged breach continue for fifteen(15) days after written notice, by certified mail-return receipt requested, and regularmail, is forwarded to him or her, then in any action or proceeding commenced by eitherparty against the other on account of such alleged breach in which a judicialdetermination is made the successful party shall recover from the other party, inaddition to all other remedies, all reasonable counsel fees and expenses incurred bysuch successful party in connection with such action or proceeding, and/or as awardedby the Court or forum where the proceeding was commenced.2. Should an alleged breach be cured by a party after commencement of anaction or proceeding as set forth in paragraph 1 above, then, unless otherwise agreed16(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019by the parties, the party commencing the action or proceeding shall recover from theother party reasonable counsel fees incurred in connection with commencing suchaction or proceedingARTICLE XIlRESPONSIBILITY FOR DEBTS1. Except as otherwise provided herein, the Wife represents, warrants andcovenants that she has not heretofore, nor will she hereafter, incur or contract any debt,charge, obligation or liability whatsoever for which the Husband, his legalrepresentatives or his property or estate is or may become liable. The Wife agrees toindemnify and hold the Husband harmless of all loss, expenses (including reasonableattorneys' fees) and damages in connection with or arising out of a breach by the Wifeof her foregoing representation, warranty and covenant.2. Except as otherwise provided herein, the Husband represents, warrantsand covenants that he has not heretofore, nor will he hereafter, incur or contract anydebt, charge, obligation or liability whatsoever for which the Wife, her legalrepresentatives or her property or estate is or may become liable. The Husband agreesto indemnify and hold the Wife harmless of loss, expenses (including reasonableattorneys' fees) and damages in connection with or arising out of a breach by theHusband of his foregoing representation, warranty and covenant.3. Wife warrants and represents that she maintains no credit cards in herindividual name.(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127RECEIVED NYSCEF: 07/19/20194, Husband warrants and represents that he maintains the following creditcards in his individual name, and that the Wife does not maintain any liability orresponsibility of any kind with respect to said credit card debt:a.AMEX Platinum; account number xxx-1009, with a balance ofapproximately $67,957.00 as of November, 2012;AMEX Starwood; account number xxx-2002, with a balance ofapproximately $8,500.00 as of November, 2012;Discover; account number xxx-0302, with a balance of approximately$8,100.00 as of November, 2012;AT&T Universal Card; account number xxx-2926, with a balance ofapproximately $7,400.00 as of November, 2012.Bank of America Visa Signature; account number xxx-8483, with abalance of approximately $7,700.00 as of November, 2012.Citicard; account number xxx-7138, with a balance of approximately$21,100 as of November, 2012.5. Husband shall be solely responsible for payment of all such credit carddebt in his individual name, and Husband agrees to indemnify Wife and hold herharmless in all respects with regard thereto, including reasonable counsel fees incurredby Wife in any way defending a claim with respect to any debt in the Husband'sindividual name6. Both parties warrant and represent that they do not maintain any creditcards which are held in their joint names.18(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/20197. The parties acknowledge and represent that the Husband signed aPromissory Note in favor of Jerzy and Elzbieta Sledziejowski, in the sum of TwoHundred Forty Thousand Dollars ($240,000.00), plus interest at a rate of 5% perannum, in consideration of funds loaned to the parties to pay down marital debt as wellas for costs and expenses related to the purchase of the marital residence. The currentamount outstanding in connection with said Promissory Note, inclusive of interest, totalsapproximately $267,000 as of October 2012. Wife agrees to be solely responsible forthe repaymen 

Related Contentin New York County