Law Office of Ellen S. Ross
Johnstown, New York

Selected Reported Cases


The following are some of the officially published court decisions on cases in which attorney Ross was involved, either as attorney for the children or one of the parties, either at the trial court level or on appeal.
IN THE MATTER OF CASEY, 3 A.D.3d 785 [3d Dept 2004]
772 N.Y.S.2d 107
IN THE MATTER OF CASEY VV., A PERSON IN NEED OF SUPERVISION.
KATHRYN A. CHARBONNEAU, AS PROBATION OFFICER OF THE FULTON COUNTY PROBATION DEPARTMENT, Respondent;

CASEY VV., Appellant.
Appellate Division of the Supreme Court of New York, Third Department.
Decided and Entered: January 22, 2004.
Appeal from an order of the Family Court of Fulton County (Jung, J.), entered June 3, 2003, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 7, to revoke a prior order of probation and placed respondent in the custody of the Fulton County Department of Social Services for a period of one year.
Ellen S. Ross, Law Guardian, Johnstown, for appellant.
Before: Cardona, P.J., Mercure, Peters, Spain and Carpinello, JJ.


MEMORANDUM AND ORDER

Cardona, P.J.
In March 2003, respondent was adjudicated a person in need of supervision and placed on probation for one year. Thereafter, in April 2003, petitioner filed a petition alleging that respondent violated the terms and conditions of her probation.
After a hearing at which respondent's school psychologist testified and various school reports were admitted into evidence, Family Court determined that respondent violated the terms of her probation. Although requested, respondent was precluded from offering evidence in reference to a specific disposition and only allowed to be heard in summation on an appropriate disposition. The court revoked the prior dispositional order and placed respondent in the custody of the Fulton County Department of Social Services (hereinafter DSS) for a period of one year. On appeal, respondent seeks reversal of the order of placement and remittal for a dispositional hearing. She contends, among other things, that Family Court erred when it denied her request to introduce dispositional evidence.
Initially, petitioner has advised the Court by letter that "the child has now returned home," and contends that the appeal has been rendered moot, electing not to submit responding papers. We note that the dispositional order has not expired by its own terms. Moreover, our inability to discern from petitioner's statement whether respondent has been released from DSS custody and has been returned to the custody of her parent(s) precludes a determination that respondent has been afforded all the relief that she seeks on this appeal (cf. Matter of Evan P., 1 A.D.3d 831, 767 N.Y.S.2d 310, 310 [2003]). Therefore, we cannot say the appeal has been rendered moot.
Addressing the merits of respondent's claim, we find that while Family Ct Act § 779 does not specifically require a separate dispositional hearing upon a finding of a violation of probation, the parties should be given an opportunity to present evidence relevant to a proper disposition (see Matter of Josiah RR., 277 A.D.2d 654, 654[2000]) in order to comply with the requirements of due process (see Family Ct Act § 711). Because respondent was not afforded that opportunity, the appropriate remedy is to remit this matter for a new hearing (see Matter of Josiah RR.supra at 654) unless the dispositional order placing respondent in DSS custody has fully expired.
Mercure, Peters, Spain and Carpinello, JJ., concur.
ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Fulton County for further proceedings not inconsistent with this Court's decision.


COLONEY v. COLONEY, 509637 [3d Dept 1-6-2011]
2011 NY Slip Op 00073
ELIZABETH ANN COLONEY, Appellant, v. WILLIAM G.COLONEY JR.,
Respondent.
509637.
Appellate Division of the Supreme Court of New York, Third Department.
Calendar Date: November 19, 2010.
Decided and Entered: January 6, 2011.
Appeal from a judgment of the Supreme Court (Sise, J.), entered May 7, 2010 in Fulton County, which divided the proceeds from the sale of the marital home.
Ellen S. Ross, Johnstown, for appellant. 
Michael W. Smrtic, Gloversville, for respondent.
Before: Mercure, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ.
MEMORANDUM AND ORDER
EGAN JR., J.Plaintiff and defendant were married in June 1972. In 1989, the parties entered into a written separation agreement which, as relevant here, provided that defendant was to have sole possession of the former marital residence. More specifically, it provided that during his occupancy, defendant was to assume the obligation to pay the mortgage, taxes, insurance, utilities and expenses for repairs, and that, upon a sale of the house, the parties were to split the net proceeds after satisfying the mortgage, a $14,900 loan from defendant's father, the broker's commission and closing costs. While he lived in the house, defendant made the regular monthly mortgage payments and, eventually, the mortgage was satisfied. At some point, defendant also repaid the loan from his father. In 1995, a judgment of divorce was entered granting the parties a divorce, incorporating, but not merging, the 1989 separation agreement. In 2009, some 20 years after execution of the separation agreement, the house was sold for $164,320. After the parties unsuccessfully attempted to reach an understanding with respect to the division of the net sale proceeds, defendant sought an order authorizing the distribution of the sale proceeds so as to grant him a credit for the entire amount of the mortgage satisfied by him during his occupancy and the $14,900 paid to satisfy his father's loan. Supreme Court determined that defendant was entitled to credits of $37,550 (representing the 1989 balance on the mortgage) and $14,900 (representing the amount paid to his father), and plaintiff now appeals.
"`A separation agreement that is incorporated into but not merged with a divorce decree is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law'" (Bjerke v Bjerke,69 AD3d 1042,1043-1044[2010], quotingMerl v Merl,67 NY2d 359,362[1986];see Matter of Heinlein vKuzemka,49 AD3d 996,997[2008];Mills vMills,22 AD3d 1003,1003[2005];Matter of Antes vMiller,304 AD2d 892,893[2003]). As such, the intent of the parties is determined by contract law and, "`thus, any ambiguity in the agreement's terms must be resolved by determining the parties' intent at the time of contracting, either from within the four corners of the document, if possible, or, as a last resort, from whatever extrinsic evidence is available'" (Bjerke v Bjerke69 AD3d at 1044, quoting Cortese v Redmond,199 AD2d 785,786[1993];see Teachers Ins. & Annuity Assn. vTedeschi,3 AD3d 671,673[2004];Su v Su,268 AD2d 945,946[2000],lv denied95 NY2d 752[2000]). Whether or not any ambiguity exists is a question of law for the court to decide (see W.W.W. Assoc. v Giancontieri,77 NY2d 157,162[1990];Van Wagner Adv. Corp. v S & MEnters.,67 NY2d 186,191[1986];Shook v Blue Stores Corp.,30 AD3d 811,812[2006];Hudock v Village of Endicott,28 AD3d 923,924[2006];Su v Su,268 AD2d at 946). Furthermore, "[a] contract is ambiguous if the language used lacks a definite and precise meaning, and there is a reasonable basis for a difference of opinion" (Pozament Corp. vAES Westover, LLC,27 AD3d 1000,1001[2006];see Greenfield v Philles Records,98 NY2d 562,569[2002]). If ambiguity is found, "`intent is to be gleaned not only from the literal language of the agreement, but also from whatever reasonably may be implied therefrom'" (Matter of Shatraw,66 AD3d 1293,1294[2009], quotingMatter of Frye v Brown,189 AD2d 1031,1033[1993];see Mills v Mills,22 AD3d at 1003;Stewart v Stewart,266 AD2d 702,704[1999];Hewlett vHewlett,243 AD2d 964,966[1997],lvs denied 91 NY2d 887[1998],95 NY2d 778[2000]). 
Here, the separation agreement contemplated the eventual sale of the house by one of two means — by one party buying out the other party's interest or by sale to a third party. In the event of a third-party sale, the agreement provided that plaintiff and defendant would share equally in the net proceeds, after deduction of the amount to be paid to satisfy the mortgage, the $14,900 loan from defendant's father, brokerage commissions and closing costs. In the event of one party buying out the other's interest, the agreement provided that the purchase price would be calculated at one half of the then net equity, taking into consideration the balance of the existing mortgage as of November 1989. While the spousal buyout provision does indeed reference the November 1989 balance of the existing mortgage, it is in the context of the parties' negotiated formula for establishing a purchase price if a sale were to occur between themselves — an event that never occurred. Defendant's and Supreme Court's reliance on that language is thus misplaced, and we must look to the agreement's language as it pertains to a third-party sale to determine the parties' intent. The agreement is clear that the parties will share equally in the proceeds of the sale after the balance on the existing mortgage — whatever that amount may be — is deducted. While the 1989 agreement does not specifically contemplate the possibility of the house selling at a date so far in the future that the mortgage would be paid in full, it is obvious that the parties intended that, in return for defendant being permitted to reside in the house, he would be required to pay the taxes, insurance, mortgage, utilities and repairs in the meantime, that no backward-looking credit was to be given defendant for previous mortgage payments, and that the parties would share equally in the cost of paying off, at closing, anyexistingmortgage balance, plus the father's loan (see generally Matter of Wasyliw v Smith,18 AD3d 931,933[2005]). The fact that no mortgage existed to be paid off by the time of closing is simply a reflection that defendant enjoyed the right under the agreement to indefinite possession of the house and so availed himself for some 20 years. Thus, based on the express language of the separation agreement, which obligates defendant to make the mortgage payments on the marital home, and the lack of any language which, in the event of a subsequent sale of the marital residence to a third-party would provide defendant with a credit for those mortgage payments, Supreme Court erred in providing defendant with such a credit (see Matter of Shatraw,66 AD3d at 1295Hejna v Reilly,26 AD3d 709,712[2006];Braune v Braune,132 AD2d 512,512[1987]; compare Ives v Ives,96 AD2d 643,643[1983],appeal dismissed 61 NY2d 760[1984]). 
Likewise, in light of the clear language of the separation agreement providing that the loan from defendant's father "shall be paid from the proceeds of the sale," we find that Supreme Court erred in determining that defendant was entitled to recoup the entire amount of the debt from the proceeds of the sale. As the agreement contemplated that each party's ultimate share of the proceeds from the sale of the marital home would be reduced by one half of the debt amount, defendant is entitled to a credit in the amount of $7,450 only.
Mercure, J.P., Malone Jr., Stein and McCarthy, JJ., concur. 
ORDERED that the judgement is modified, on the law, without costs, by reversing so much thereof as granted defendant a credit of $52,450 from the proceeds of the sale of the marital residence; grant defendant a credit of $7,450 from said proceeds; and, as so modified, affirmed.