You are here: / / Annuity Purchased as Part of Settlement After Husband’s On-the-Job...
,

Annuity Purchased as Part of Settlement After Husband’s On-the-Job Accident Is Marital Property—Husband’s Pension Is Marital Property to the Extent It Represents Deferred Compensation—Wife Did Not Demonstrate Entitlement to Appreciation of Marital Residence (Which Was Husband’s Separate Property)

After noting that the appellate court has the same powers as the trial court in rendering a judgment in a matrimonial action, the Second Department determined that an annuity purchased pursuant to a settlement agreement stemming from the on-the-job injury to the plaintiff-husband should have been deemed marital, not separate, property.  The Second Department further determined that plaintiff’s pension was marital property subject to equitable distribution, and defendant did not demonstrate she was entitled to any portion of the appreciation of the marital residence (which was plaintiff’s separate property):

Although a settlement award emanating from a personal injury action commenced by the parties is partially the separate property of each party named in such action (…Domestic Relations Law § 236[B][1][d][2]), here, the parties’ conduct converted the separate property of the settlement into marital property. Specifically, the parties’ agreement to a settlement term that allowed the obligor or its successors to purchase an annuity, which provided for a right of survivorship to each party, to effectuate the terms of the settlement, manifests the parties’ intent to transfer the character of the property of each arising out of that settlement from separate to marital. * * *

With respect to the equitable distribution of this marital asset, “it is important to note that there is no requirement that the distribution of each item of marital property be on an equal basis” … . Here, equity dictates that the plaintiff should receive most of the annuity, as he is permanently disabled and unable to earn an income now or in the future, whereas the plaintiff is employed and has future income earning capacity. * * *

The Supreme Court also erred in finding that the plaintiff’s pension payments constituted separate property not subject to equitable distribution (cf. Domestic Relations Law § 236[B][5][b]). In New York, “pension benefits or vested rights to those benefits, except to the extent that they are earned or acquired before marriage or after commencement of a matrimonial action, constitute marital property” … . To the extent that a disability pension constitutes compensation for personal injuries, it is considered separate property not subject to equitable distribution … . However, to the extent that a disability pension represents deferred compensation, it is subject to equitable distribution … . Thus, here, the defendant is entitled to an equitable share of the marital portion of so much of the plaintiff’s pension as represents deferred compensation … . * * *

…[T]he defendant failed to provide any evidence tending to show an appreciation in the value of the marital residence due to her contributions that would entitle her to an equitable share of the increase in value of the marital property (see Domestic Relations Law § 236[B][1][d][3]…). The only evidence of the value of the marital residence was the plaintiff’s net worth statement, which indicated that he purchased it for $35,000. The defendant offered no evidence to establish the value of the home at the time of the commencement of the divorce action or whether it had appreciated in value during the marriage. Rizzo v Rizzo, 2014 NY Slip Op 06305, 2nd Dept 9-24-14

 

You might also like
Judge’s Failure to Properly Handle Note from Jury Was Reversible Error
Unlicensed Contractor Could Not Sue for Breach of Contract or Quantum Meruit
THE CHILD SUPPORT PROVISIONS OF THE STIPULATION OF SETTLEMENT IN THE DIVORCE ACTION VIOLATED THE CHILD SUPPORT STANDARDS ACT AND MUST BE VACATED; THE VACATUR SHOULD HAVE EXTENDED BACK TO THE DATE OF THE STIPULATION, NOT MERELY TO THE DATE OF THE RELATED MOTION (SECOND DEPT).
THE STIPULATION SETTING A DATE FOR THE CLOSING ON DEFENDANT’S PURCHASE OF THE PROPERTY DID NOT INFORM DEFENDANT HE WOULD BE CONSIDERED TO BE IN DEFAULT IF THE CLOSING DID NOT TAKE PLACE BY THAT DATE; THEREFORE THERE WAS NO “TIME OF THE ESSENCE” AGREEMENT AND PLAINTIFF WAS NOT ENTITLED TO THE DOWN PAYMENT (SECOND DEPT).
CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED.
Police Were Not Justified In Entering the Curtilage of Defendant’s Home (By Climbing a Fence) After Defendant Ignored the Officers’ Command to “Stop”
PLAINTIFF BASKETBALL PLAYER WAS AWARE OF THE CRACK IN THE BASKETBALL COURT OVER WHICH HE TRIPPED AND FELL, SUIT WAS PRECLUDED BY THE DOCTRINE OF ASSUMPTION OF THE RISK, CONCURRING JUSTICE ARGUED THAT THE CRACK WAS NOT A RISK INHERENT IN THE SPORT, BUT WAS CONSTRAINED TO AGREE WITH THE MAJORITY BASED ON PRECEDENT (SECOND DEPT).
Time-Limit for Serving a Complaint Was Never Triggered Because the Summons with Notice Was Filed But Not Yet Served at the Time Defendants Served a Notice of Appearance and Demand for a Complaint

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Election of Remedies Provision in Labor Law 740 Precluded Retaliation Action... Supreme Court Properly Imputed Income to Husband (Higher than that Reported...