Passmore v. King

In an action purportedly to recover damages for breach of contract, but which is in actuality to effectuate equitable distribution of marital property, the plaintiff, Caretha Crim Passmore, as executrix of the estate of James R. Crim, appeals from an order of the Supreme Court, Queens County (Rosenzweig, J.), dated May 14, 1990, which, inter alia, granted the defendant’s cross motion for summary judgment dismissing the complaint. Ordered that on the court’s own motion, Miriam King, as administratrix of the estate of Vivian M. Crim, is substituted as the party defendant, and the caption is amended accordingly; and it is further, Ordered that the order is affirmed, with costs. During their pending divorce action, James R. Crim and Vivian M. Crim executed a written agreement in order to settle their respective financial property rights and all other matters arising out of their marriage. The agreement dated March 24, 1986, provided that "as and for Equitable Distribution” the wife would pay the husband $18,000 in 36 equal monthly installments of $500 each, for which the husband agreed to convey his interest in the marital premises by bargain and sale deed upon the payment to him of the additional sum of approximately $40,000 pursuant to a contract of sale of the marital premises. The contract of sale set the closing date for May 29, 1986. On April 2, 1986, prior to the closing and entry of a judgment of divorce, the husband died. The plaintiff, as executrix of the husband’s estate, commenced the instant action to recover the $58,000 due and owing. [242] Contrary to the plaintiffs contention, the Supreme Court did not err in granting the defendant’s motion to dismiss the complaint. The agreement dated March 24, 1986, clearly and unambiguously establishes that the parties intended that the payments by the wife and the transfer of the husband’s interest in the premises to be an equitable distribution of the marital property (see generally, Slatt v Slatt, 64 NY2d 966). Accordingly, the action is properly characterized not as one to recover damages for breach of contract, but to effectuate equitable distribution. Thus, it follows that the husband’s death abated the marital action and extinguished any right of equitable distribution (see, Sperber v Schwartz, 139 AD2d 640, 642). The plaintiff further contends that the language conveying the husband’s interest in the marital premises to the wife, together with the execution of a contract of sale, meets the requirements of General Obligations Law § 3-309 for the conveyance of property between spouses. Accordingly, the plaintiff asserts that the deceased husband performed his obligations under the marital agreement and contract, and is entitled to the benefit of his bargain, which by its terms inures to his estate. We disagree. At the time of the deceased husband’s death, there was no conveyance of the marital premises, as the closing had not yet occurred, and there had been no judicial decree of separation, annulment, or divorce terminating the marriage. Nor was the agreement dated March 24, 1986, an instrument of "partition or division of any real property” under General Obligations Law § 3-309 (see, Matter of Violi, 65 NY2d 392, 395). We have reviewed the plaintiffs remaining contentions and find them to be without merit. Thompson, J. P., Harwood and Rosenblatt, JJ., concur.