author: Read, J. Graffeo, J.

text:
    [898 NE2d 909, 869 NYS2d 866]
    Linda R. Graev, Respondent, v Lawrence Graev, Appellant. Lawrence Graev, Appellant, v Linda R. Graev, Respondent.
    Argued September 2, 2008;
    decided October 21, 2008

      POINTS OF COUNSEL

      Greenberg Traurig, LLP, New York City (Leslie D. Corwin, Israel Rubin and Rachel Sims of counsel), for appellant.
    I. The settlement agreement is a contract subject to principles of contract interpretation. (Bloomfield v Bloomfield, 97 NY2d 188; Matter of Meccico v Meccico, 76 NY2d 822; Rainbow v Swisher, 72 NY2d 106; Nichols v Nichols, 306 NY 490; Slamow v Del Col, 79 NY2d 1016; Matter of Scalabrini v Scalabrini, 242 AD2d 725; Laba v Carey, 29 NY2d 302; Camaiore v Farance, 50 AD3d 471; Greenfield v Philles Records, 98 NY2d 562; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29.) II. A look at other states that have construed the term “cohabitation” is illustrative. III. By focusing on the sharing of expenses, the Appellate Division majority ignored the way in which cohabiting adults often conduct their exclusive relationships.

      Myrna Felder, New York City, for respondent.
    I. The affirmed findings of fact, by which this Court is bound, confirm that there was no cohabitation, even using the dictionary definition of living together in a sexual relationship. (Matter of Hofbauer, 47 NY2d 648; Simon v Electrospace Corp., 28 NY2d 136; L. Smirlock Realty Corp. v Title Guar. Co., 63 NY2d 955.) II. Since there was no cohabitation under either definition used by the Appellate Division majority or dissent, the appeal is hypothetical and moot and should not be considered. (People ex rel. Arthur F. v Hill, 29 NY2d 17; Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO, 72 NY2d 307; Matter of Roadway Express v Commissioner of N.Y. State Dept. of Labor, 66 NY2d 742; Matter of Barbara C., 64 NY2d 866.) III. For more than a decade prior to the parties’ agreement, right up to the present day, New York courts have uniformly construed the unambiguous plain meaning of cohabitation to require a shared residence, shared household expenses and functioning as an economic unit. (Scharnweber v Scharnweber, 105 AD2d 1080, 65 NY2d 1016; Brown v Brown, 122 AD2d 762; Salas v Salas, 128 AD2d 849; Matter of Ciardullo v Ciardullo, 27 AD3d 735; Clark v Clark, 33 AD3d 836; Matter of Emrich v Emrich, 173 AD2d 818; Lefkon v Drubin, 143 AD2d 400; Markhoff v Markhoff, 225 AD2d 1000; Famoso v Famoso, 267 AD2d 274; People v Robinson, 95 NY2d 179.)

      Elliott Scheinberg, Staten Island, for American Academy of Matrimonial Lawyers, New York Chapter, amicus curiae.
    I. The “dum casta” clause in a settlement agreement contractually terminates spousal maintenance upon the wife’s specified cohabitation with an unrelated male. (Heller v Pope, 250 NY 132; Bloomfield v Bloomfield, 97 NY2d 188; Matter of Greiff, 92 NY2d 341; Christian v Christian, 42 NY2d 63; Robinson v Robinson, 134 Misc 2d 664; Matter of Embiricos, 184 Misc 453; Laba v Carey, 29 NY2d 302; Matter of Stoeger, 30 Misc 2d 1090; Clark v Clark, 33 AD3d 836; Matter of Ciardullo v Ciardullo, 27 AD3d 735; Matter of Emrich v Emrich, 173 AD2d 818; Scharnweber v Scharnweber, 105 AD2d 1080, 65 NY2d 1016.) II. The Appellate Division decision created an impermissible presumption in violation of the canon of contract doctrine prohibiting judicial insertions into contracts. (Rainbow v Swisher, 72 NY2d 106; Matter of Boden v Boden, 42 NY2d 210; Matter of Meccico v Meccico, 76 NY2d 822; Schmelzel v Schmelzel, 287 NY 21; Braithwaite v Braithwaite, 299 AD2d 383; Matisoffv Dobi, 90 NY2d 127; Brady v Nally, 151 NY 258; Mencher v Weiss, 306 NY 1; Fox Film Corp. v Springer, 273 NY 434; Nichols v Nichols, 306 NY 490.) III. Words in a contract are to be given their ordinary dictionary meanings. (Mazzola v County of Suffolk, 143 AD2d 734; 2619 Realty v Fidelity & Guar. Ins. Co., 303 AD2d 299, 100 NY2d 508; Scharnweber v Scharnweber, 65 NY2d 1016.) IV. “Natural, ordinary, familiar meanings” of words and “apparent meaning may not be distorted,” and “reasonable implications and expectations” and “evident intent” must be followed as written. (Rainbow v Swisher, 72 NY2d 106; Matter of Boden v Boden, 42 NY2d 210; Matter of Meccico v Meccico, 76 NY2d 822; Schmelzel v Schmelzel, 287 NY 21; Robinson v Robinson, 134 Misc 2d 664; Matter of Embiricos, 184 Misc 453; Matter of vStoeger, 30 Misc 2d 1090; Kalousdian v Kalousdian, 35 AD3d 669; Slatt v Slatt, 102 AD2d 475; Blackmon v Estate of Battcock, 78 NY2d 735.) V. Another canon of contract construction directs that strict and rigid meanings may not be given to words; the Appellate Division decision imputed a rigid meaning of “cohabitation” to counsel. (Atwater & Co. v Panama R.R. Co., 246 NY 519.) VI. The Appellate Division decision applies a one-size-fits-all reasoning even in instances where fact and logic dictate otherwise; conflicts and unanswered questions persist within the Appellate Division decision. (Famoso v Famoso, 267 AD2d 274; Lefkon v Drubin, 143 AD2d 400; Matter of Emrich v Emrich, 173 AD2d 818.)

      McCarthy Fingar LLP, White Plains (Gail M. Boggio of counsel), for Women’s Bar Association of the State of New York, amicus curiae.
    I. The term cohabitation has been uniformly construed throughout New York State. (Scharnweber v Scharnweber, 105 AD2d 1080, 65 NY2d 1016; Brown v Brown, 122 AD2d 762; Salas v Salas, 128 AD2d 849; Clark v Clark, 33 AD3d 836; Matter of Emrich v Emrich, 173 AD2d 818; Matter of Ciardullo v Ciardullo, 27 AD3d 735; Lefkon v Drubin, 143 AD2d 400.) II. Women who signed agreements over the course of the last 20 years are entitled to rely upon the uniform case law definition of cohabitation. (Scharnweber v Scharnweber, 105 AD2d 1080, 65 NY2d 1016; People v Robinson, 95 NY2d 179; Famoso v Famoso, 267 AD2d 274; Matter of Emrich v Emrich, 173 AD2d 818; Lefkon v Drubin, 143 AD2d 400; Salas v Salas, 128 AD2d 849.) III. The dictionary test propounded by appellant would have an immense negative effect on dependent spouses. (Hartog v Hartog, 85 NY2d 36.)
   OPINION OF THE COURT

Read, J.

In 1995, Linda Graev and Lawrence Graev filed separate divorce actions, which were subsequently consolidated. On April 18, 1997, they entered into a settlement agreement that was incorporated, but not merged, into a judgment of divorce entered and filed in June 1997. As relevant to this appeal, the agreement required Mr. Graev to pay Mrs. Graev spousal support payments in the amount of $10,000 per month, subject to a specified maximum cost-of-living adjustment, until the earlier of August 10, 2009 or the occurrence of any of four “termination events”; namely, the wife’s remarriage or death, the husband’s death, or “[t]he cohabitation of the Wife with an unrelated adult for a period of sixty (60) substantially consecutive days.” The agreement did not define “cohabitation.”

On September 7, 2004, Mr. Graev advised Mrs. Graev that her cohabitation with ME] an unrelated adult male, had been “documented and photographed by professionals retained by [his] counsel.” Invoking the settlement agreement’s provision for termination in the event of cohabitation, Mr. Graev therefore ceased making spousal support payments as of September 2004.

On October 13, 2004, Mrs. Graev moved in Supreme Court by order to show cause to enforce the settlement agreement’s maintenance provisions; on October 29, 2004, Mr. Graev cross-moved for summary judgment on the ground that a termination event had occurred. Mr. Graev essentially took the position that Mrs. Graev and MP were cohabiting within the meaning of the settlement agreement because MP had stayed overnight in Mrs. Graev’s vacation home in Connecticut for at least 60 substantially consecutive days during the summer of 2004, as borne out by surveillance. Further, he contended, there was an “obvious serious relationship” between Mrs. Graev and MI] and MP was Mrs. Graev’s “lover and life partner,” as illustrated by the number of family occasions—weddings, birthdays and the like— they attended as a couple.

Mrs. Graev argued that she did not “cohabit” with MP during the summer of 2004 because their relationship had long been platonic, as proven by evidence of MP’s sexual incapacity and her diminished sexual desire caused by prescribed medication. In Mrs. Graev’s view, “use [of] the word ‘cohabitation’— rather than ‘living together’ or ‘residing’ . . . plainly mean[t] having sexual relations.” In response, Mr. Graev insisted that “cohabitation could not possibly require ‘sexual relations’ ” under the law and the plain meaning of the settlement agreement, which was intended to be less stringent than section 248 of the Domestic Relations Law.

In subsequent dueling submissions to the motion court, Mrs. Graev for the first time pointed to “a body of New York cases where termination of maintenance was not permitted [where] there was no economic unit shown.” For his part, Mr. Graev reprised his argument that “cohabitation [was] not synonymous with, and [did] not require a showing of ‘sexual relations,’ ” but rather encompassed a “variety of factors,” none of which was dispositive.

On February 14, 2005, Supreme Court granted both parties’ motions to the extent of ordering a hearing to determine whether Mrs. Graev’s relationship with MP constituted “cohabitation” within the meaning of the settlement agreement. The motion court first acknowledged that “the parties[’] agreement relating to ‘cohabitation’ draws from, but is far more expansive than, the language found in section 248 of the Domestic Relations Law” (6 Misc 3d 1024[A], 2005 NY Slip Op 50169[U], *2). Next, the court stated that whether Mrs. Graev was having sexual intercourse with MP was “not conclusive.” (Id.) Rather, “sexual intimacy may be one of the elements that a court could consider.” (Id.)

Given the absence of a definition of “cohabitation” in the settlement agreement, Supreme Court determined that “the plain meaning of’ the word should be examined, as well as various New York cases, none of which “narrowly construed ‘cohabitation’ in the manner [Mrs. Graev] suggested].” (Id.) The motion court opined that “cohabitation consist[ed] of several elements that [Mr. Graev] must establish by a preponderance of the evidence at a hearing,” but did not identify or suggest how much weight to give any individual element (id. at *3). The court twice cited Brown v Brown (122 AD2d 762, 763, 764 [2d Dept 1986]), which held that the ex-wife was not “liv[ing] with another man” so as to forfeit her support payments under the terms of a stipulation where “the evidence did not establish that [she] and her tenant shared household expenses or a bedroom, or that they functioned as an economic unit.” The court also adverted to Matter of Watson v Watson (39 AD2d 660 [1st Dept 1972] [intermittent intimacy with the same male does not fulfill the requirements of Domestic Relations Law § 248]); Olstein v Olstein (309 AD2d 697, 698, 699 [1st Dept 2003] [ex-wife “resid(ed) . . . with a non-relative adult male . . . for a reasonably continuous period of more than six months” where she admitted to a “romantic” relationship with her male friend, and they shared meals and stayed overnight in the same house for requisite period of time]); Famoso v Famoso (267 AD2d 274, 274, 275 [2d Dept 1999] [ex-wife did not “resid(e) with an unrelated adult male . . . for a period of 120 days in any one (1) year” where “resid(e)” was defined in separation agreement as “staying overnight” because husband neither established that ex-wife’s male friend stayed overnight a sufficient number of times during surveillance period, nor, alternatively, actually resided with her in light of evidence that he maintained a separate residence]); Markhoffv Markhoff (225 AD2d 1000 [3d Dept 1996] [applying Domestic Relations Law § 248]); and Scharnweber v Scharnweber (105 AD2d 1080 [4th Dept 1984] [concluding that ex-wife was not “living” with an unrelated male at the former marital residence where “the evidence established that they (did) not share household expenses or a bedroom and (did) not function as an economic unit”], affd 65 NY2d 1016, 1017 [1985] [holding that a separation agreement may condition a husband’s obligation to support ex-wife “solely on her refraining from living with another man without the necessity for the husband to also prove that she habitually holds herself out as the other man’s wife as Domestic Relations Law § 248 requires”]).

The hearing was held before another Supreme Court Justice. Contending for the first time that the word “cohabitation” was ambiguous, Mr. Graev moved in limine for permission to present extrinsic evidence of the “circumstances surrounding the [settlement] agreement” so as to explain what behavior the parties intended to cover. Mrs. Graev countered that the.motion court “was able to define the term cohabitation in accordance with the plain meaning of the term as construed by the case law” cited in its decision (i.e., Brown, Olstein, Famoso, Markhoff and Scharnweber), thus “removing any question of ambiguity” and establishing the law of the case.

Supreme Court denied the motion on the ground that the motion court’s February 2005 decision held that the word “cohabitation” as used in the settlement agreement was not ambiguous. By the conclusion of the ensuing trial, Mr. Graev was arguing that Mrs. Graev and MP were cohabiting within the meaning of the settlement agreement because they consistently shared a bed at her summer home in Connecticut during the summer months of 2004; their relationship was, at least at one point, admittedly sexual and remained romantic and exclusive for over three years; they participated in social activities with friends and family as a couple and split costs when dating; and they performed chores and errands together. These facts were basically undisputed. For her part, Mrs. Graev contended that she and MP were not “cohabiting” within the meaning of the settlement agreement because the cases relied on by the motion court “define[d] cohabitation as living together[,] with the central element being the maintaining [of] one residence, sharing household expenses and functioning as an economic unit.” And in this case, it was undisputed that MP owned his own home in Connecticut, where he spent considerable time, and did not contribute to the costs of maintaining Mrs. Graev’s summer home.

In a decision and order dated March 10, 2006, Supreme Court, again relying on the motion court’s decision, opined that because “cohabitation” was not defined in the settlement agreement, she had to consider its plain meaning and those few New York cases construing similar termination clauses. She referred to Black’s Law Dictionary, which defines “cohabitation” to mean “living together, especially] as partners in life, usu[ally] with the suggestion of sexual relations” (Black’s Law Dictionary 277 [8th ed 2004]), but noted that, as the motion court had ruled, “sexual intimacy alone [was] not determinative of . . . cohabitation.” In any event, Supreme Court credited Mrs. Graev’s and MP’s testimony that their relationship ceased to be sexual long before the summer of 2004.

Citing Markhoff and Matter of Emrich v Emrich (173 AD2d 818 [2d Dept 1991]), Supreme Court concluded that New York cases “find that an essential element of cohabitation is a shared residence with shared household expenses” and that “the couple functioned as an economic unit,” features lacking in the bond between Mrs. Graev and MP, which she likened to “an adult dating relationship.” As already mentioned, Markhoff applied Domestic Relations Law § 248. In Emrich, the Appellate Division concluded that the ex-wife was not “residing on a substantially continuous basis” with another male (meaning “for a period not less than sixty [60] days”) because of “the evidence that the wife’s [male] friend maintained a separate residence and that his contributions to the wife’s household expenses were sporadic and minor” (Emrich, 173 AD2d at 819, 820).

On appeal, Mr. Graev repeated his plea that the word “cohabitation” is ambiguous under New York law. Mrs. Graev rejoined that New York courts have construed “cohabitation” as synonymous with “living together,” which, in turn, the courts have long held to mean sharing a residence, sharing expenses, and functioning as an economic unit. The Appellate Division affirmed, with two Justices dissenting.

The majority acknowledged that parties to a divorce can, by agreement, alter the terms that would otherwise apply under Domestic Relations Law § 248, and observed that these kinds of agreements are “contracts subject to the principles of contract construction and interpretation” (Graev, 46 AD3d at 450). The majority then concluded that

“[a] review of New York case law shows that in the context of these types of separation agreements, the term cohabitation has a plain meaning which contemplates changed economic circumstances, and is not ambiguous. . . . [I]t is . . . sensible to presume that attorneys using a term such as ‘cohabitation’ in a separation agreement are aware of the judicial decisions construing the term” (id. at 451 [emphasis added]).

According to the majority, New York judicial decisions had consistently interpreted “cohabitation” to mean “more than a romantic relationship or series of nights spent together” and to require “the sharing of finances” or “an economic relationship akin to a shared possessory interest in one home,” which could be “proven with evidence that two people keep their personal belongings and receive their mail at the same address” (id. at 452, citing Salas v Salas, 128 AD2d 849 [2d Dept 1987], lv dismissed 70 NY2d 747 [1987] [ex-wife was not “living together” with another man because they maintained separate residences, frequently slept in their separate residences, and did not share household expenses or otherwise function as an economic unit]). The majority adduced four cases to support this proposition: Scharnweber; Emrich; Matter of Ciardullo v Ciardullo (27 AD3d 735, 736 [2d Dept 2006] [concluding that ex-wife was not “habitually living with a man” or “establishing) a residence with a man” because unrebutted evidence showed that her boyfriend “maintained a separate residence in the one-bedroom apartment he rented from (her) and the two did not share household expenses or function as an economic unit”]); and Clark v Clark (33 AD3d 836, 837, 838 [2d Dept 2006] [interpreting “cohabitation of the Wife with an unrelated male,” and citing Ciardullo, Emrich and Scharnweber for the principle that “(a)s interpreted by New York courts, the term cohabitation entails a relationship between a former wife and an unrelated male who live together in the same residence and share household expenses or function as an economic unit” (internal quotation marks omitted)]).

As for this case, the majority found that Mrs. Graev and MP spent more than 60 substantially consecutive nights together during the summer of 2004, and that “their relationship became romantic in January 2003” (Graev, 46 AD3d at 448). These facts were not “decisive” under New York case law, however, because MP owned his own home and there was “absolutely no evidence that the couple shared household expenses or functioned as a single economic unit” (id. at 453). As a result, the majority concluded that Mrs. Graev’s relationship with MP did not amount to “cohabitation.”

The dissent would have awarded Mr. Graev summary judgment terminating his obligation to make spousal support payments. Setting out various dictionary definitions for “cohabitation,” the dissent considered it “obvious” that “in the context of the agreement, cohabitation mean[t] living together in a sexual relationship for a period of 60 substantially consecutive days” (id. at 458), and disbelieved Mrs. Graev’s and MP’s testimony about the absence of sexual intimacy in their romantic relationship after March 2003. The dissent did not “take the position that financial interdependence [was] irrelevant,” but “merely state[d] that under the terms of this agreement, it [was] not determinative of the issue of cohabitation, as the majority holds” (id. at 459).

We now reverse. We do not agree that “the term cohabitation has a plain meaning which contemplates changed economic circumstances, and is not ambiguous” absent an explicit provision to the contrary in a separation agreement or stipulation (Graev, 46 AD3d at 451), or, put slightly differently, is necessarily determined by whether a “couple share[s] household expenses or function[s] as a single economic unit” (id. at 453). Rather, the word “cohabitation” is ambiguous as used in this settlement agreement: neither the dictionary nor New York case law supplies an authoritative or “plain” meaning. Similarly, courts in other states have not ascribed a uniform meaning to the word “cohabitation” as used in separation agreements (see Allen, Annotation, Divorced or Separated Spouse’s Living with Member of Opposite Sex as Affecting Other Spouse’s Obligation of Alimony or Support Under Separation Agreement, 47 ALR4th 38, §§ 6[a], 6[b]).

In addition to the definition in Black’s Law Dictionary, already set out, “cohabit” is variously defined as “[t]o live together as husband and wife: often said distinctively of persons not legally married” (3 Oxford English Dictionary 448 [2d ed 1989]); “live together and have a sexual relationship without being married” (The New Oxford American Dictionary 330 [2d ed 2005]); “to live together as or as if as husband and wife” (Webster’s Third New International Dictionary 440 [2002 ed]); “to live together as husband and wife, usually without legal or religious sanction,” or “to live together in an intimate relationship” (Random House Webster’s Unabridged Dictionary 400 [2d ed 2001]); and “to live together as or as if a married couple” (Merriam Webster’s Collegiate Dictionary [10th ed 1997]). The common element in all these definitions is “to live together,” particularly in a relationship or manner resembling or suggestive of marriage, and New York courts have, in fact, used the word “cohabitation” interchangeably with the phrase “living together” (see e.g. Markhoff, 225 AD2d at 1001; Olstein, 309 AD2d at 698; Scharnweber, 65 NY2d at 1017). Ultimately, however, “living together” as if husband and wife is no less opaque than “cohabitation”: both bring to mind a variety of physical, emotional and material factors, and therefore might mean any number of things in a separation agreement, where otherwise unexplained in the text, depending on the parties’ intent. For example, the parties here might reasonably have meant “cohabitation” to encompass whether Mrs. Graev engaged in sexual relations with an unrelated adult; whether she and the unrelated adult commingled their finances or—just the opposite—whether she supported the unrelated adult financially; whether she and the unrelated adult shared the same bed; or some combination of these or other factors associated with living together as if husband and wife.

Nor does New York case law establish a distinct meaning— “changed economic circumstances”—for “cohabitation.” The argument that it does stems from the Appellate Division’s one-paragraph, frequently cited decision in Scharnweber, which we affirmed. In that case, Supreme Court concluded that an unrelated male was living with Mrs. Scharnweber in the former marital residence, which entitled her ex-husband to cease support payments and required her to pay $10,000 to discharge a second mortgage. There are no facts recited in the Appellate Division’s decision. The record on appeal, however, discloses that Mrs. Scharnweber, who was 43 years old, was having an affair with her daughter’s former boyfriend, who was 24 years old. The boyfriend moved into a house 300 yards down the street from the former marital residence, first house-sitting for the absent owner and subsequently renting a room. He gave Mrs. Scharnweber or her teenage daughter (the cook in the family) money to purchase food, and routinely took his meals with Mrs. Scharnweber and her cliildren at the former marital residence; he also occasionally helped her out with car payments. Both Mrs. Scharnweber and her boyfriend testified that he did not sleep overnight with her in the marital residence (he worked a night shift; she worked during the day).

The Appellate Division reversed, concluding that “the evidence established that [Mrs. Scharnweber and her boyfriend did] not share household expenses or a bedroom and [did] not function as an economic unit” despite the boyfriend’s financial contributions for food and transportation (Scharnweber, 105 AD2d at 1080). In our memorandum decision, we stated that the facts in the case, which we did not describe, “more nearly comport[ed] with the Appellate Division’s view” than with Supreme Court’s, and so the ex-husband “failed to establish the cohabitation required by the agreement” (Scharnweber, 65 NY2d at 1017). We did not equate the word “cohabitation” with “changed economic circumstances” alone. Indeed, the Appellate Division in Scharnweber indicated that whether Mrs. Scharnweber and her boyfriend shared a bedroom (unlike Mrs. Graev and MI] they did not) was also a relevant factor (see also Brown, 122 AD2d at 764). While more recent Appellate Division decisions— particularly Ciardullo and Clark—may be read to imply, as the Appellate Division held in this case, that there can be no “cohabitation” without changed economic circumstances, we have never taken this position and decline to do so now. In addition, as Mr. Graev points out, Ciardullo and Clark were handed down long after the drafters of the settlement agreement in this case had finished their work, and so could not have influenced it.

The ambiguity of the word “cohabitation” in this settlement agreement is illustrated by the shape-shifting “plain” meanings and positions advanced by the parties over the course of the litigation. Initially, Mr. Graev claimed that Mrs. Graev and MP were cohabiting because MP stayed overnight in Mrs. Graev’s house for 60 substantially consecutive days, and shared a close social, familial-like relationship. Mrs. Graev objected that “cohabitation” did not mean “living together,” and “plainly” meant only “having sexual relations.”

After the motion court ruled that “cohabitation” encompassed many different elements, and not just sexual intimacy, Mr. Graev argued that the word “cohabitation” was, in fact, ambiguous, and therefore extrinsic evidence was required to flesh out its meaning for these parties. Mrs. Graev then tacked about, contending that “cohabitation” was, after all, synonymous with “living together,” and that the “plain meaning of [cohabitation] as construed by the case law” entailed a shared residence, shared household expenses and living together as an economic unit. Having won below on this basis, Mrs. Graev makes the same assertions here. For his part, Mr. Graev insists—in line with the dissent in the Appellate Division—that “cohabitation” plainly contemplates solely a series of 60 more-or-less consecutive nights spent together.

In short, the word “cohabitation” does not have a “plain” meaning in this settlement agreement. Without extrinsic evidence as to the parties’ intent, there is no way to assess the particular factors inherent in the dictionary meanings or case law discussions of “cohabitation” the parties may have meant to embrace or emphasize.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Graffeo, J.

(dissenting). The issue in this case is whether the proof of “cohabitation” submitted by Mr. Graev was adequate to discontinue his maintenance obligation under the cohabitation clause in the parties’ agreement. I conclude it was and, therefore, would hold, as matter of law, that Mr. Graev is entitled to terminate his maintenance payments. The majority, however, views the use of the term “cohabitation” in the divorce settlement agreement in this case as inherently ambiguous and requires a court to make findings of fact regarding what the parties intended the term to mean. Because the cohabitation provision includes a specific time period together with the maintenance termination event, I believe the clause is unambiguous and there is no need to remit this case to Supreme Court for yet another hearing.

I

After two years of contentious divorce litigation, the Graevs negotiated a settlement agreement, which was incorporated, but not merged, in the judgment of divorce entered in June 1997. According to the terms of the negotiated settlement, Lawrence Graev paid Linda Graev almost $2.5 million and agreed to make maintenance payments of $120,000 a year (later increased to $132,000 a year), with monthly maintenance payments continuing until August 10, 2009—about 12 years after the parties’ divorce. These payments would terminate upon the occurrence of one of four specified events: (1) the death of Mrs. Graev; (2) the death of Mr. Graev; (3) Mrs. Graev’s remarriage; or (4) Mrs. Graev’s “cohabitation . . . with an unrelated adult for a period of sixty (60) substantially consecutive days.”

Linda Graev’s primary residence was an apartment on Fifth Avenue in New York City, but she also maintained a home in Connecticut that she used intermittently and for about two months every summer. Sometime after the divorce, she became acquainted with M.E, who owned a home near hers in Connecticut. They soon began an exclusive and intimate relationship. It is undisputed that M.E and Mrs. Graev spent virtually every day and night together for over 60 days from June through August 2004. M.E had unfettered access to her home, but he did not keep much personal property at Mrs. Graev’s house (with the exception of an approximately two-week period after he sold his home and before he purchased a new house). Each paid for their own expenses and their finances were not commingled. Despite M.E’s daily use of Mrs. Graev’s home, he did not make contributions toward upkeep of the property. As Mrs. Graev’s constant companion, M.E began attending Graev family functions, such as birthday and college graduation celebrations. In fact, when M.E attended the Graevs’ daughter’s wedding ceremony, he joined in the formal family photographs that were taken to commemorate that occasion.

After receiving reports from investigators regarding M.E’s consistent presence at his ex-wife’s home, Lawrence Graev moved to terminate his maintenance obligation on the ground that Linda Graev had cohabitated with M.E during the summer of 2004. She countered that she had not triggered a spousal support termination event because M.E owned a home and their finances remained separate. Both Supreme Court and the Appellate Division concluded that there was no cohabitation under the meaning of the parties’ divorce agreement because Mrs. Graev and M.E did not function as a single “economic unit.” Mr. Graev now appeals to this Court as of right on the basis of a two-Justice dissent in the Appellate Division that would have granted his application on the rationale that financial interdependence is not a prerequisite to cohabitation.

II

“A separation agreement is a contract subject to the principles of contract construction and interpretation” (Matter of Meccico v Meccico, 76 NY2d 822, 823-824 [1990]). It is an elementary rule that contracts are construed in accordance with the intent of the parties and the best evidence of the parties’ intent is what they write in their agreement (see e.g. Goldman v White Plains Ctr. for Nursing Care, LLC, 11 NY3d 173, 176 [2008]). Consequently, if a written agreement is complete, clear and unambiguous, it “ ‘must be enforced according to the plain meaning of its terms,’ without reference to extrinsic materials outside the four corners of the document” (id., quoting Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). When presented with such an agreement, “a court is not free to alter the contract to reflect its personal notions of fairness and equity” (Greenfield v Philles Records, 98 NY2d at 570).

Contrary to the majority’s assertion, I find that the term “cohabitation” has a commonly-accepted core meaning: habitually living with an unrelated adult in the same residence while engaged in an intimate relationship without being legally married to that person (see e.g. Black’s Law Dictionary 277 [8th ed] [“The fact or state of living together, esp. as partners in life, usu. with the suggestion of sexual relations”]; New Oxford American Dictionary 330 [2d ed 2005] [“live together and have a sexual relationship without being married”]; Random House Webster’s Unabridged Dictionary 400 [2d ed 2001] [“1. to live together as husband and wife, usually without legal or religious sanction. 2. to live together in an intimate relationship”]; Webster’s Third New International Dictionary 440 [2002 ed] [“to live together as or as. if as husband and wife”]). In fact, we have explained that “cohabitation” is synonymous with the phrase “habitually living with another” person for purposes of the maintenance termination provisions of Domestic Relations Law § 248 (see e.g. Matter of Bliss v Bliss, 66 NY2d 382, 389 [1985] [“statutory language clearly mandates discrete findings of cohabitation and holding out” (emphasis added)]; Northrup v Northrup, 43 NY2d 566, 571 [1978]; see also Markhoffv Markhoff, 225 AD2d 1000, 1001 [3d Dept 1996], lv denied 88 NY2d 807 [1996]; Gordon v Gordon, 342 Md 294, 297 n 2, 675 A2d 540, 542 n 2 [1996]; E.D.M. v T.A.M., 307 SC 471, 475, 415 SE2d 812, 815 [1992] [“evidence of living together in an intimate relationship supports a finding of cohabitation”]).

It is true, however, that the use of the term “cohabitation” without elaboration or conditions is capable of causing ambiguity. This is because a living arrangement becomes cohabitation only if it is habitual and this requirement may not be quantified in every situation. But the parties in this case were careful to avoid this pitfall by indicating that the benchmark would be a specific duration—“sixty (60) substantially consecutive days”—a practice that is implicitly recommended by a leading New York treatise (see Scheinkman, New York Law of Domestic Relations, Appendix B, at 550 [12 West’s NY Prac Series] [“openly and continuously cohabits with an unrelated male for a continuous period exceeding 30 days”]). This was sufficient to make the cohabitation clause here unambiguous.

The Graevs agreed that maintenance payments would terminate if Linda Graev cohabitated for 60 or more substantially consecutive days with a person not related to her. As Mrs. Graev concedes, she and M.P were in an intimate relationship: they held themselves out as a couple to their family, friends and community; their approximately three-year relationship was exclusive, monogamous and, at least for a time, sexual in nature; M.E attended family celebrations; he had complete access to her home; they spent most of their time together; and they slept together almost every night for at least 60 substantially consecutive days. Consequently, I would hold that Mrs. Graev cohabitated with M.E for the requisite period of time, resulting in the termination of her right to continued maintenance.

Ill

The fact that Mrs. Graev and M.E lived together intimately for the relevant time frame but did not share household expenses or “function as an economic unit”—the key component of the Appellate Division’s reasoning—does not provide an adequate basis for departing from the text of this divorce agreement and basic principles of contract law. To begin, in construing the term “cohabitation,” we have never suggested that two people cannot “live together” in an intimate relationship if they do not function as an “economic unit” (see e.g. Matter of Bliss v Bliss, 66 NY2d at 389; Northrup v Northrup, 43 NY2d at 571). Admittedly, there is a line of Appellate Division cases that supports the idea that cohabitation requires financial interdependence. The genesis of this analysis appears to have been Scharnweber v Scharnweber (105 AD2d 1080 [4th Dept 1984], affd 65 NY2d 1016 [1985]). The agreement in that case specified that the ex-wife would “not have any unrelated male living in the household” that was the former marital residence. The Appellate Division concluded that this condition had not been met because the ex-wife and the new man did “not share household expenses or a bedroom and d[id] not function as an economic unit” (id.).

This Court affirmed, noting only that the evidence failed to establish that “the wife lived with an unrelated male at the former marital residence” (65 NY2d at 1017). Significantly, we did not address or endorse the “economic unit” requirement. Nevertheless, courts have subsequently adopted the notion that cohabitation requires a sharing of household expenses or functioning as an economic unit without adequately explaining why this factor must be engrafted on divorce agreements and stipulations that do not incorporate such a condition (see e.g. Clark v Clark, 33 AD3d 836 [2d Dept 2006]; Matter of Ciardullo v Ciardullo, 27 AD3d 735 [2d Dept 2006]).

Today, as a Court, we unanimously reject the rule that economic interdependence is a sine qua non of cohabitation. Aside from the textual and contractual considerations, that rule makes little sense practically because a party receiving maintenance can easily evade the consequence of a termination provision and receive more than the benefit of his or her bargain. Mrs. Graev and M.E, for example, would be free to continue their relationship in its current form indefinitely without violating the termination provision—they could be together 24 hours a day and sleep together every night for years—but as long as they maintain separate bank accounts and do not share expenses, they would not be cohabitating under the economic unit concept. This is not how a cohabitation clause is supposed to work; nor is it what other parties anticipate when including similar cohabitation clauses in their agreements.

That being said, I agree with the majority that economic interdependence can be relevant to the cohabitation analysis. As the plain meaning of the term makes clear, cohabitation is comprised of several distinct elements: (1) living with (2) an unrelated adult (3) for a specified period of time or with an expectation of permanence (4) in an intimate relationship (5) without being married to that person. In my view, the extent to which a couple intermingles its finances is pertinent on the issues of whether the relationship is sufficiently “intimate” or whether the parties intended a long-term commitment. But in this case, the intimate nature of the relationship is not in dispute, and the question of duration or permanence is addressed by the agreement itself—60 substantially consecutive days. Hence, the cohabitation clause has been triggered.

The Appellate Divisions’ “economic unit” theory is also undermined by its failure to take into account that financial independence, as well as economic interdependence, may sometimes support a finding of cohabitation. This is so because there can be more than one purpose for a cohabitation clause. It can represent the parties’ understanding that one ex-spouse should not have to pay maintenance if the other has a new partner to help support his or her lifestyle. But, just as importantly, these clauses may also be designed to prevent an ex-spouse from using the money he or she receives from an ex-spouse to support a new paramour.

IV

In sum, the majority’s determination that the use of “cohabitation” in divorce agreements gives rise to ambiguity raises serious concerns. First, it will create a proliferation of litigation in virtually every case where these commonly-used cohabitation/ maintenance termination provisions are sought to be enforced. And courts, in turn, will have little helpful evidence when attempting to evaluate the issue other than the self-interested testimony of the parties themselves. Second, requiring extrinsic evidence in all these cases undermines the primary purpose for entering into written agreements—to memorialize the parties’ understanding of the parameters of permissible and impermissible conduct and personal relations. Thus, the majority’s rule creates uncertainty, making it difficult for parties to understand their obligations and responsibilities. The wiser choice is to articulate a clear rule of law: cohabitation occurs when two unrelated adults who are not married to each other have an intimate relationship and live together habitually for an agreed-to period of time.

For all of these reasons, I conclude that the maintenance obligation was terminated by operation of the cohabitation clause and would hold that Lawrence Graev is entitled to judgment as a matter of law.

Chief Judge Kaye and Judges Ciparick and Jones concur with Judge Read; Judge Graffeo dissents in a separate opinion in which Judges Smith and Pigott concur.

Order reversed, etc.

      . This provision vests trial judges with discretion to annul support payments “upon proof that the wife is habitually living with another man and holding herself out as his wife” (Domestic Relations Law § 248 [emphasis added]).

        . As the majority in the Appellate Division subsequently noted, however, the motion court’s ruling “did not explicitly state that the term ‘cohabitation’ was unambiguous, but instead that the term had not been construed in the narrow manner that Mrs. Graev suggested” initially; i.e., having sexual relations (Graev v Graev, 46 AD3d 445, 447 [1st Dept 2007]).

      . According to Mrs. Graev and MI] they started dating in October 2002, but were sexually intimate only from January to March 2003.

      . The dissent complains that our resolution of this appeal “creates uncertainty, making it difficult for parties to understand their obligations and responsibilities’ ’; and that “[t]he wiser choice is to articulate a clear rule of law” (dissenting op at 280). But the uncertainty stems principally from parties’ use of a word sufficiently ambiguous to have been interpreted so variously by the courts. Moreover, the dissent’s purportedly “clear rule of law” is hardly fair to those who may have used the word “cohabitation” in an extant separation agreement, intending the meaning ascribed to it by those Appellate Division cases requiring financial interdependence. The wisest rule, of course, is for parties in the future to make their intention clear by more careful drafting.

      . The agreement here did not incorporate the entire statutory standard set forth in Domestic Relations Law § 248 for termination of court-ordered support. Section 248 allows a court, upon application, to exercise discretion “upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man.”

      . Although it has been said that “cohabitation,” standing alone, is ambiguous because it can mean to live with a man, a woman, or either a man or a woman (Kripp v Kripp, 578 Pa 82, 92-93, 849 A2d 1159, 1165 [2004]), even if that is true the divorce agreement in this case specified that Mrs. Graev would not live with an unrelated “adult.”

      . The essential holding of the majority’s opinion is that there can be cohabitation without financial interdependence or functioning as an economic unit (see majority op at 273 [recognizing the existence of the Appellate Divisions’ “economic unit” theory but stating that “we have never taken this position and decline to do so” in this case]).

      . See e.g. Gordon v Gordon, 342 Md at 309-310, 675 A2d at 548 (“if the cohabitant does not pay a fair share of the household expenses, then it follows that part of the support payment supports the cohabitant rather than the ex-spouse”); Wolfe v Wolfe, 46 Ohio St 2d 399, 421, 350 NE2d 413, 427 (1976) (“ ‘if the paramour resides in the wife’s home without contributing anything toward the purchase of food or the payment of normal household bills, then there may be a reasonable inference that the wife’s alimony is being used, at least in part, for the benefit of the paramour, in which case it could be argued with force that the amount thereof should be modified accordingly’ ”), quoting Garlinger v Garlinger, 137 NJ Super 56, 64, 347 A2d 799, 803 (1975).

      . Parties to future divorce agreements may wish to consider whether to define “cohabitation” to expressly exclude the “economic unit” concept (see generally Zipparo v Zipparo, 70 AD2d 616 [2d Dept 1979] [defining term to mean “ ‘the regular living together of the Wife with a man for period exceeding six (6) months’ ”]) or simply discontinue using the term “cohabitation”— which the majority believes is inherently meaningless in the absence of factual findings regarding the parties’ intent—in favor of “reside” or “live together” along with a specified period of time.


source: Caselaw Access Project

author: Ciparick, J. Pigott, J.

license: Public Domain

text:
    [898 NE2d 553, 869 NYS2d 370]
    The People of the State of New York, Respondent, v Jonathan Jenkins, Appellant.
    Argued September 11, 2008;
    decided October 23, 2008

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Margaret E. Knight, Richard M. Greenberg and Rosemary Herbert of counsel), for appellant.
    Where Jonathan Jenkins had complied with all the terms of his plea agreement, in which he agreed to complete a drug treatment program and meet several other conditions in exchange for dismissal of his case, Mr. Jenkins was entitled to specific performance of the agreement. (People v Danny G., 61 NY2d 169; Matter of Benjamin S., 55 NY2d 116; United States v Alexander, 869 F2d 91; People v McConnell, 49 NY2d 340; Spence v Superintendent, Great Meadow Correctional Facility, 219 F3d 162; United States v Lawlor, 168 F3d 633; Innes v Dalsheim, 864 F2d 974; Santobello v New York, 404 US 257; Torres v Berbary, 340 F3d 63; People v Outley, 80 NY2d 702.)
    Respondent precluded.
   OPINION OF THE COURT

Ciparick, J.

The issue presented by this appeal is whether Supreme Court was compelled to grant defendant specific performance of a plea agreement providing for dismissal of an indictment upon his alleged successful completion of a drug treatment program. We conclude that Supreme Court acted within its discretion in denying dismissal of the indictment.

I.

Having been arrested in June 1999 and indicted for criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) for selling two bags of crack-cocaine to an undercover police officer, in December 1999 defendant pleaded guilty as a second felony offender to a reduced charge of criminal sale of a controlled substance in the fifth degree (Penal Law § 220.31), a class D felony, permitting him to avoid incarceration conditioned upon his satisfying the following obligations as set forth in a written plea agreement: (1) completing a 12-to-18-month residential drug treatment program at Veritas Therapeutic Community, a Drug Treatment Alternative to Prison (DTAP) program, and completing its aftercare or live-out treatment; (2) completing vocational training including obtaining a general equivalency diploma (GED); (3) securing full-time employment and (4) finding “suitable” housing. The plea agreement additionally required defendant to make every court appearance and not be rearrested. Sentencing was initially adjourned until August 2001.

In the event that defendant successfully completed the drug treatment program and otherwise complied with the terms of the plea agreement, the Office of Special Narcotics Prosecutor (OSN) would join in an application to the court to have defendant’s case dismissed. If defendant failed to fulfill any of these obligations, the agreement prescribed alternative sentences: 3V2 to 7 years’ imprisonment if he left the program without authorization or otherwise did not complete treatment and did not voluntarily return to court, and 2 to 4 years’ imprisonment if he was not accepted by the program or if he failed the program but voluntarily returned to court. The plea agreement states that the determination of whether defendant violates the terms and conditions of the plea is at the “sole discretion” of OSN and the court.

Defendant began the residential phase of the Veritas program in January 2000, completing it in March 2001. He then began the outpatient phase, living with his girlfriend in New Jersey and attending a relapse-prevention aftercare program. Veritas reported to the court that defendant had obtained employment and opened a savings account. And, in a letter dated October 11, 2001, Veritas reported that defendant had successfully completed all phases of the drug treatment program, but that he had unresolved family issues that would create further problems for him if not addressed. The letter noted that although Veritas attempted to provide the couple with family services, defendant’s girlfriend was recalcitrant towards attending counseling sessions.

Defendant filed a Clayton motion (CPL 210.40; see People v Clayton, 41 AD2d 204, 206-208 [2d Dept 1973]) to dismiss the indictment in the furtherance of justice, alleging that he had complied with the terms of the agreement by completing the Veritas program and committing no new crimes. At a court appearance, on October 12, 2001, the People stated that they would not join in defendant’s motion at that time because they had not received documentary proof that defendant successfully completed his GED, obtained full-time employment, opened a bank account and met the other plea conditions. OSN requested a two- or three-week adjournment to provide defendant with ample time to submit the documentation and to allow the People to evaluate defendant’s progress and respond to the motion. After a bench conference, defendant withdrew his motion and likewise requested a several-week adjournment.

Supreme Court then read the portion of the Veritas letter to defendant that indicated concerns about his domestic problems. Afterwards, the court requested of defendant that during the adjournment he seek support services for his own benefit to prevent a “relapse.” The court additionally said to defendant that he had shown “attitude problems” and “resistance” to timely providing the required documents to demonstrate his completion of the plea conditions. Defendant confirmed his intention to promptly provide the required documentary proof including bank statements and pay stubs. Following a colloquy, the court adjourned the case to November 16, 2001.

On November 2, 2001, defendant’s compliance with the plea conditions began to worsen dramatically. He was rearrested in New Jersey for charges involving a domestic violence assault against his girlfriend, which charges were subsequently dismissed. By November 14, 2001, defendant had lost his job and failed to attend treatment consistently. Additionally, defendant continued residing with his girlfriend despite their apparently tumultuous relationship and after having been warned by OSN that residing with her could breach the condition requiring defendant to maintain “suitable” housing.

On February 1, defendant was remanded to custody after a report from Veritas that, since December of the previous year, defendant was not employed and had failed to attend group and family counseling. On February 5, in open court, defendant signed a written agreement in the presence of his attorney providing him with yet another opportunity to continue with drug treatment instead of being sentenced to incarceration for having violated his plea agreement. Under this second agreement, defendant would attend biweekly counseling services until he obtained full-time employment, continue drug testing and attend one family counseling session per week with his girlfriend. Defendant agreed to the terms, signed the agreement and noted that he was not pressured or forced into doing so.

Defendant, however, soon stopped attending group meetings and failed to maintain contact with Veritas. On April 23, 2002, Veritas terminated him from the program for failing to appear for more than 30 days. Supreme Court then issued a bench warrant for his arrest for failing to make court appearances. On May 28, 2003, after two New Jersey arrests, defendant was involuntarily returned on the warrant. Thereafter, defendant renewed his Clayton motion. This time, he claimed that he was entitled to specific performance of his plea agreement as of October 12, 2001 when Veritas had confirmed his completion of the drug treatment program and he had orally asserted that he complied with the other terms. Defendant argued that the problems arose only after he was required to attend more counseling sessions, which he claimed were outside the scope of the plea agreement.

On June 6, 2004, defendant, with newly appointed counsel, withdrew his renewed Clayton motion, despite making a lengthy record that he should be granted a dismissal in the furtherance of justice or in the alternative a hearing to determine his compliance with his plea conditions. Defendant stated that he had obtained a GED, acquired vocational training certificates, secured full-time employment and that his housing had been, at some earlier time, approved by OSN. The People maintained that OSN had discretion to require defendant to participate in further support services relating to his unresolved family issues. Prior to sentencing defendant to SVa to 7 years’ incarceration, Supreme Court informed him that the withdrawal of his motion was without prejudice to pursue his claims on appeal.

The Appellate Division, with two Justices dissenting, held that Supreme Court was not obligated to grant defendant specific performance of the plea agreement on October 12, 2001 because defendant had failed to provide proof by that date that he had completed his plea obligations (44 AD3d 1 [2007]). The court also rejected defendant’s claim that the February 2002 agreement constituted a unilateral alteration of the plea agreement by Supreme Court. The dissent asserted that the People breached the plea agreement by refusing to grant defendant the benefit of the bargain, including dismissal of the indictment, because he had met all of his plea obligations and that Supreme Court erred by not dismissing the indictment. A Justice of the Appellate Division granted leave to appeal and we now affirm.

II.

In deciding a motion to dismiss an indictment in the interest of justice (see CPL 210.40, 210.45 [1], [2]), a court must strike a “sensitive balance between the individual and the State” interests to determine whether the ends of justice are served by dismissal of the indictment (Clayton, 41 AD2d at 208). Such a value judgment “hinge[s] on the production of facts in the possession of the prosecution and the defendant” (id.). Based upon such proffered facts, the court must consider applicable factors under CPL 210.40 “individually and collectively” before concluding that dismissal of the indictment is in the interest of justice (see People v Berrus, 1 NY3d 535, 536 [2003]).

Here, the language of the plea agreement itself specifically gave broad discretion to the court and the People to decide whether defendant had complied with it—“Whether the defendant violates the terms and conditions of this agreement is at the sole discretion of OSN and the court.” Thus the court and the People were entitled to insist on strict compliance with every term. They had no obligation to overlook what might seem minor deficiencies, or to accept as satisfactory defendant’s performance with the treatment program, when Veritas reported that important issues remained unresolved. The judgment as to whether defendant had performed adequately was for the prosecutor and the court to make.

Defendant contends that at the time he filed his initial Clayton motion, which he quickly withdrew in Supreme Court on October 12, 2001, he had successfully completed all aspects of his plea agreement. Defendant further asserts that Supreme Court’s imposition of a family counseling condition subjected him to a supplemental condition, extraneous to the original plea agreement, that he was forced to accept because the alternative was a possible sentence of incarceration. These claims are meritless.

Under these circumstances, where defendant had failed to provide satisfactory proof that he completed all of the conditions of his agreement, the People were entitled to an adjournment and not required to join in the motion to dismiss. Neither was Supreme Court compelled to “turn a blind eye” and dismiss this case in the furtherance of justice. To be sure, Supreme Court could not pass favorably on defendant’s Clayton motion without evidentiary support demonstrating that he had complied with the terms of the agreement as CPL 210.40 requires the court to articulate on which factors it relies in dismissing an indictment. Affording the trial court this discretion does not, as the dissent maintains, improperly shift the burden of proof from the People to defendant (see dissenting op at 293).

Once defendant violated his plea agreement by being rearrested, the court was “no longer bound by the plea promise and could properly impose an enhanced sentence” (People v Figgins, 87 NY2d 840, 841 [1995]). He also failed to comply with the requirement that he maintain “suitable” housing. OSN had informed defendant that he must either discontinue residing with his girlfriend or attend family counseling sessions with her, and he had not done either. Under the plea agreement, OSN had the authority to determine if defendant was maintaining “suitable” housing.

As for defendant’s contention that the court could not add additional family counseling, while it is impermissible for a trial court to impose additional conditions on a defendant after pleading guilty (see People v Avery, 85 NY2d 503, 507 [1995], citing People v Farrar, 52 NY2d 302, 306-307 [1981]), here, no such additional conditions were imposed. Supreme Court recommended that defendant seek counseling services with his girlfriend to prevent a relapse which, on this record, was well within the discretion afforded the court. Indeed, Supreme Court never stated that defendant’s refusal to attend a family counseling program would constitute a violation of the original plea agreement and make him eligible for the alternative jail sentence.

Moreover, the additional agreement that defendant chose to enter into on February 5, 2002 also did not violate defendant’s original agreement. By that date, defendant had already breached his plea agreement, thereby making him eligible to be sentenced to 2 to 4 years’ incarceration. Instead, the court put forward the proposal by OSN to provide him with yet another opportunity to avoid incarceration by attending additional counseling and finding full-time employment. In view of defendant’s breach of the plea agreement, Supreme Court had the discretion to offer defendant this opportunity to obtain counseling services in lieu of sentencing him to jail.

Defendant violated this second agreement, resulting in his discharge from Veritas. Further, he failed to appear at scheduled court dates and bench warranted. Upon his return on the warrant, defendant renewed his Clayton motion. Supreme Court at sentencing likewise did not violate defendant’s right to specific performance of his plea agreement and would have been justified in denying this renewed motion to dismiss the indictment had it not been withdrawn.

Thus, there has been no showing that Supreme Court abused its discretion while supervising a defendant subject to DTAP in requesting him in October 2001 to attend family counseling to address his unresolved family issues. Furthermore, defendant had not produced documentation as to his compliance with the other terms of the agreement. Neither did Supreme Court abuse its discretion on February 5, 2002 when defendant signed the subsequent agreement. In light of our holding that Supreme Court did not abuse its discretion as a matter of law, we need not reach other issues.

Accordingly, the order of the Appellate Division should be affirmed.

Pigott, J.

(dissenting). As efficacious as many remedial programs are, particularly those involving drug and alcohol rehabilitation, in my view, they do not relieve the People nor the court from keeping promises made as part of a bargained-for plea. It is for that reason that I respectfully dissent.

We have long recognized that “[p]lea bargaining is a practice vital to the efficient administration of the criminal justice system, and ‘an integral part of the plea bargaining process is the negotiated sentence’ ” (People v Avery, 85 NY2d 503, 506 [1995] [citations omitted]). “Plea and sentence negotiation further important policy considerations, conserving law enforcement, judicial and penal resources, and permitting the parties to avoid the uncertainties inherent in the lengthy process of charge, trial, sentence and appeals, thereby ‘starting the offender on the road to possible rehabilitation’ as soon as practicable” (id., quoting People v Selikoff, 35 NY2d 227, 233 [1974], cert denied 419 US 1122 [1975]). In short, it’s good for both sides.

It has always been true that if a defendant violates a valid condition of the plea agreement, the court is not bound by the agreed-upon sentence (People v Figgins, 87 NY2d 840, 841 [1995]). But it is equally true that the sentencing court must conduct a sufficient inquiry to determine if defendant has indeed violated any condition of the plea (see People v Outley, 80 NY2d 702 [1993]); and it is the People who bear the burden of proving that a violation has occurred (see People v Milligan, 40 AD3d 1217 [3d Dept 2007]; see also Torres v Berbary, 340 F3d 63 [2d Cir 2003]). In the absence of a violation, the failure or inability to fulfill a promise by either the People or the court requires either that the plea of guilty be vacated or the promise fulfilled (People v Selikoff, 35 NY2d at 239).

Equally relevant here, a court does not have discretion to unilaterally impose conditions that were not originally agreed upon by the parties or reasonably understood to be part of the agreement (see Avery, 85 NY2d at 508; People v Spina, 186 AD2d 9, 9-10 [1st Dept 1992]). We have said before that “inasmuch as the State may hold the defendant to the precise terms of the plea agreement as stated on the record, as a matter of fairness, defendant should be entitled to no less” (People v Danny G., 61 NY2d 169, 174 [1984]).

In this case, defendant’s plea agreement required him to participate in a residential drug treatment program at Veritas Therapeutic Community (Veritas), a residential 12-to-18-month program devoted to the treatment and prevention of drug abuse and addiction. If defendant successfully completed the program, the Office of Special Narcotics Prosecutor (OSN) would join defendant’s application to dismiss the indictment in the interest of justice. “Successful completion” of the program was defined under the agreement as “completing vocational educational training, obtaining a General Equivalency Diploma, securing full-time employment, and finding suitable housing approved by the Enforcement Team of the Office of Special Narcotics Prosecutor (OSN).” If defendant left the program or otherwise failed to successfully complete the program as determined by the program, the court would impose a sentence of SVa to 7 years. The agreement further required defendant to execute a consent form for the release of confidential information so that the court, his attorney and OSN could be apprised on a monthly basis of his progress in the treatment program. Whether defendant violated the terms and conditions of the agreement was “at the sole discretion of OSN and the Court.”

Defendant entered Veritas in January 2000, and on a monthly basis thereafter, Veritas sent to OSN, which then forwarded to the court, a progress report on defendant. For instance, after 13V2 months of treatment, in February 2001, a letter was sent to OSN from Veritas indicating that defendant was making “immense progress” and had negative toxicology reports. Further, defendant had maintained employment, opened a savings account, and demonstrated “responsibility and determination.” On June 13, 2001, a progress report indicated that defendant “completed the residential phase of treatment and began the Live-Out Phase of treatment on March 30, 2001.” He completed a “12-week cycle of Relapse Prevention on April 27, 2001,” had negative drug tests and attended all scheduled groups. The letter further stated that defendant resided with his family, was employed full time, and continued his vocational training. For over a year and a half, progress reports like these were sent to OSN and the court. Thus, defendant’s case was calendared and adjourned in excess of 50 times, evidencing close supervision by OSN and the court and apparent satisfaction with his progress.

On October 4, 2001, following completion of the program, defendant moved to dismiss his case in the interest of justice pursuant to the plea agreement. Neither OSN nor the People opposed defendant’s motion, although they did not join in it as required by the plea agreement. A letter to the court, dated October 11, 2001, from a Veritas case manager announced defendant’s success and confirmed that he “has completed all phases of drug treatment at Veritas.” It further indicated that defendant had regularly attended group and individual sessions and had tested negative for drug use.

The case manager noted one wrinkle, unrelated to the original plea agreement, i.e. that defendant “has unresolved family issues” with his girlfriend “that have created and will eventually create further problems ... if not addressed.” According to the case manager, Veritas had attempted to provide not just defendant but “the couple” with “family services,” but defendant’s girlfriend had refused to participate. Despite these family problems, defendant still “ha[d] made strides in his recovery and with [the Veritas] program. As of [October 11, 2001] defendant ha[d] completed all phases of drug treatment at Veritas.”

Upon the return date of the motion, October 12, 2001, Supreme Court conducted no inquiry and, presumably, made no determination as to whether defendant had, in fact, met all of the conditions of the plea agreement. Significantly, the People made no claim that defendant had not successfully completed the program. Rather, the People requested two to three weeks to respond and sought defendant’s cooperation in providing certain documents. The court held an off-the-record discussion at the bench. What exactly was said during this discussion is unknown, but it caused defense counsel to withdraw the motion. What is known is that the parties talked about the “unresolved family issues” identified in the October 11th Veritas letter and that the court adjourned the matter to look into getting defendant “some other support services.” Defendant voiced his objection stating, among other things, that he “completed everything there is to complete in this program.”

A majority of the Appellate Division and this Court reason that Supreme Court properly exercised its discretion when it postponed the matter to permit defendant to submit proof of his compliance with some of the conditions of the plea agreement. However, my reading of the record, as just indicated, reveals that Supreme Court adjourned the matter for another reason—to investigate the “family issues” separate and apart from any agreement between the court and defendant.

Moreover, it is readily apparent that the People did not contest defendant’s claim that he was entitled to have the charges dismissed, let alone establish that he was not, nor did the court make such a finding. Indeed, the People never even argued in Supreme Court, the Appellate Division or to this Court that, as of October 2001, defendant had not complied with the terms and conditions of the plea agreement. Rather, the People have consistently argued that Supreme Court properly exercised its discretion in requiring defendant to participate in further services.

Clearly, it was Supreme Court’s duty to make sufficient inquiry, at the time of the motion, as to whether defendant had complied with the terms of the plea agreement. I disagree with the majority that defendant’s failure to provide documentation regarding the successful completion of the program excused such inquiry by the court; to so hold improperly shifts the burden of proof from the People to the defendant to prove his compliance with the plea agreement—something we have never done. But even assuming the burden was on the defendant, the facts found in this record seem to support his claim. The court had in its possession monthly progress reports from Veritas, as well as the October 11th letter, indicating that defendant had successfully completed the program: a determination that Veritas was to make under the plea agreement. What remained for the court to determine was whether OSN had approved of his housing and whether defendant had committed any new crimes. The October 11th Veritas letter confirmed that defendant had been residing with his family. OSN never objected to defendant’s housing nor his compliance with any of the other terms of the plea agreement during his treatment. Indeed, OSN only objected to his housing on October 23, 2001, two weeks after the return date, and the objection was conditional, i.e. defendant had to find another residence if his girlfriend did not attend treatment meetings.

Further, in my view, while well intentioned, Supreme Court erred in adjourning the matter to determine whether family counseling was needed for defendant, and also erred in imposing family counseling as a condition.

Accordingly, I would reverse and remit the matter to Supreme Court to conduct the appropriate inquiry into whether defendant complied with the terms and conditions of his plea agreement as of October 11, 2001.

Chief Judge Kaye and Judges Graffeo, Read, Smith and Jones concur with Judge Ciparick; Judge Pigott dissents and votes to reverse in a separate opinion.

Order affirmed.

      . Shortly thereafter, the People informed defendant that they were concerned about his potential for domestic violence as noted in the letter from Veritas, and thus they would not deem his housing “suitable” unless he either discontinued residing with his girlfriend or both of them completed a family counseling program.

      . The dissent, moreover, believes that the People erred by failing to join in defendant’s Clayton motion, and that Supreme Court erred by adjourning the case and by making an insufficient inquiry as to whether defendant complied with all of the terms of the DTAP agreement (see dissenting op at 291, 293).
      A motion to dismiss an indictment must be in writing and on notice to the People, and the People must be given a chance to respond (see CPL 210.45 [1], [2]). Because defense counsel failed to timely file the Clayton motion with OSN, OSN received the motion shortly before the October 12th court date—• certainly inadequate time to investigate whether defendant had complied with the DTAP agreement’s terms. Supreme Court, moreover, did not err in adjourning the case further because the People were entitled to an adjournment to determine whether OSN would join in the motion to dismiss the indictment and because defense counsel in his Clayton motion addressed only one of the 10 factors which the court was required to consider before dismissing the indictment in the furtherance of justice (CPL 210.40 [1] [a]-[j]).


author: Per Curiam.

text:
    [898 NE2d 14, 869 NYS2d 1]
    In the Matter of Dennis LaBombard, Justice of the Ellenburg Town Court, Clinton County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued September 9, 2008;
    decided October 23, 2008

      POINTS OF COUNSEL

      Peter A. Dumas, Malone, for petitioner.
    It is a mischaracterization to describe the actions of petitioner as a “pattern of injudicious behavior” requiring the severe remedy of removal. (Matter of Bauer, 3 NY3d 158; Matter of Esworthy, 77 NY2d 280; Matter of Duckman, 92 NY2d 141; Matter ofVonderHeide [State Commn. on Jud. Conduct], 72 NY2d 658; Matter of Sardina v State Commn. on Jud. Conduct, 58 NY2d 286.)

      Edward Lindner, New York City, Robert H. Tembeckjian, Cathleen S. Cenci and Jill S. Polk for respondent.
    Petitioner should be removed from judicial office for his repeated and egregious ethical transgressions. (Matter of VonderHeide [State Commn. on Jud. Conduct], 72 NY2d 658; Matter of Wait, 67 NY2d 15; Matter of Robert, 89 NY2d 745; Matter of Edwards, 67 NY2d 153; Matter of Tyler, 75 NY2d 525; Matter of Esworthy, 77 NY2d 280.)
   OPINION OF THE COURT

Per Curiam.

Petitioner Dennis LaBombard, Justice of the Ellenburg Town Court, seeks review of a determination of the Commission on Judicial Conduct finding that he engaged in serious judicial misconduct and recommending that he be removed from office. After plenary review of the record in this case, we agree with the Commission’s recommendation.

Petitioner has been a Town Justice since 1996. In September 2006, he was served with a complaint containing seven charges of misconduct, four of which were sustained by the Commission after a hearing before a Referee. Charge I arose from petitioner’s decision to preside over a case involving members of his family. His stepgrandson and stepgranddaughter were charged with criminal trespass in the third degree, a class B misdemeanor, as a result of an incident that occurred in the Town of Clinton. The charges were lodged in petitioner’s court, rather than Clinton Town Court, because one of the defendants was related to a Town Justice in Clinton. The prosecuting Assistant District Attorney—who was not aware of petitioner’s relationship to two of the defendants—offered to dispose of the charges by adjournment in contemplation of dismissal on the condition that each defendant agree to perform 25 hours of community service. Justice LaBombard adjourned the cases in contemplation of dismissal but, without the knowledge of the prosecutor, did not impose the community service requirement.

Charge II also involved petitioner’s stepgrandson, who had been charged with a class E felony in a case pending in another Town Court. Justice LaBombard contacted the Town Justice assigned the case and identified himself, knowing that the other judge was aware that he was a fellow jurist. After inquiring about the date of the next court appearance, petitioner advised the court that his stepgrandson was a “good kid,” and made additional remarks about other individuals involved in the case, giving the impression that the codefendants were more culpable than his stepgrandson.

The next charge stemmed from petitioner’s decision to preside over an arraignment and bail proceeding involving the son of a former coworker with whom he had worked in the same department for several years. Based on petitioner’s own statements to Commission staff, he apparently recognized that his familiarity with this individual could warrant recusal; petitioner stated that if the offense had not been a felony and had been before him for disposition, he would have disqualified himself. Instead, petitioner arraigned the defendant and, based on the recommendation of the District Attorney’s office, set bail at $5,000 cash or $10,000 bond. Unable to make bail, defendant was taken into custody. The next day petitioner received an ex parte telephone call from defendant’s mother, his former co worker, who indicated that defendant would lose his job if he remained in jail. Following this conversation, petitioner authorized defendant’s release on his own recognizance.

The final charge concerned petitioner’s conduct after he was involved in a minor motor vehicle accident with another motorist. The collision did not result in property damage or personal injury but a verbal altercation ensued when both drivers exited their vehicles. Petitioner repeatedly and gratuitously told the other motorist that he was a judge, suggesting that because of his judicial status, she must have been in the wrong and had caused the accident. When the motorist entered a nearby barber shop to call the police, petitioner followed her into the shop and continued referring to his judicial status.

As the Commission determined, petitioner’s conduct violated several of the Rules Governing Judicial Conduct, including sections 100.2 (C), 100.3 (B) (6) and 100.3 (E) (l). “As a Judge, petitioner was under a duty to conduct himself in such a manner as to inspire public confidence in the integrity, fair-mindedness and impartiality of the judiciary” (Matter of Esworthy, 77 NY2d 280, 282 [1991] [citation omitted]). Few principles are more fundamental to the integrity, fair-mindedness and impartiality of the judiciary than the requirement that judges not preside over or otherwise intervene in judicial matters involving relatives.

“The handling by a judge of a case to which a family member is a party creates an appearance of impropriety as well as a very obvious potential for abuse, and threatens to undermine the public’s confidence in the impartiality of the judiciary. Any involvement by a judge in such cases or any similar suggestion of favoritism to family members has been and will continue to be viewed by this court as serious misconduct” (Matter of Wait, 67 NY2d 15, 18 [1986]).

The same is true of intervention by a judge in proceedings involving family members pending in another court, particularly when that intervention takes the form of ex parte contact with the judge presiding over the relative’s case (see Matter of Edwards, 67 NY2d 153, 154-155 [1986]). And we have noted that “[t]he absence of a specific request for favorable treatment or special consideration is irrelevant” (id. at 155). In this case, petitioner engaged in serious misconduct when he sat on a criminal matter involving his two stepgrandchildren and intervened in a case against his stepgrandson pending in another court.

Petitioner also presided at the arraignment and bail proceeding of a former coworker’s son, even though this prior association led him to believe recusal would have been warranted had the case been before him on the merits. Under the Rules Governing Judicial Conduct, recusal is appropriate when a judge’s “impartiality might reasonably be questioned” (22 NYCRR 100.3 [E] [1]). A judge is ordinarily the “sole arbiter of recusal” when the relationship at issue falls in the “vast discretionary area over which reasonable Judges can differ” (Matter of Murphy, 82 NY2d 491, 495 [1993] [citations omitted]). But, here, the Commission appropriately concluded that petitioner’s decision to sit on the case amounted to misconduct because petitioner neither disqualified himself nor disclosed his relationship with defendant’s mother to all interested parties, even though he had concluded that recusal with respect to cases involving this particular defendant was necessary in some circumstances. The appearance of favoritism that arose from petitioner’s decision to hear the matter was compounded by his participation in ex parte communications with defendant’s mother—his former coworker—and his subsequent decision to vacate the bail order and release defendant on his own recognizance. We similarly concur with the Commission’s determination that petitioner’s repeated invocation of his judicial status after the motor vehicle accident was improper as it appears to have been an attempt to use the prestige associated with judicial office to intimidate the other motorist.

Given the seriousness of petitioner’s transgressions, removal is the appropriate sanction in this case. With knowledge of the rules governing judicial recusal, petitioner intentionally violated them. Petitioner testified that he understood that he should disqualify himself from cases involving his family members but did not do so because he believed he could be “very, very fair.” He chose to sit on the case, even though the matter was in his court as a result of another judge’s conflict of interest arising from a familial relationship with one of the defendants—a circumstance that should have prompted petitioner to seriously question the propriety of his own involvement. Notably, he presided even though the conflict of interest was palpable given that his daughter and defendants’ father (his son-in-law) were present in the courtroom to provide support for the defendants who were not represented by counsel. Whatever his motivation for declining to impose the community service condition required by the prosecutor, petitioner’s treatment of the case gave the impression that his relatives had received a special benefit—a perception that undermines the integrity of the judiciary and is inconsistent with the fair administration of justice.

Equally troubling was petitioner’s assertion that he would have recused himself from the matter involving his former coworker’s son if the case had not been a felony; even after the fact, it appears that petitioner failed to appreciate that the decision to sit at the arraignment and bail proceeding presented precisely the same appearance of partiality. And petitioner’s intervention on behalf of his stepgrandson in a matter pending in another court, as well as his invocation of his judicial status in the wake of the motor vehicle accident, suggest a willingness to misuse his judicial office for personal advantage—a quality that is antithetical to the judicial role.

Accordingly, the determined sanction of removal should be accepted, without costs.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in per curiam opinion.

Determined sanction accepted, without costs, and Dennis L. LaBombard removed from the office of Justice of the Ellenburg Town Court, Clinton County.

      . “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge” (22 NYCRR 100.2 [C]).

      . “A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding” (22 NYCRR 100.3 [B] [6]).

      . “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3 [E] [1]).

      . The finding of misconduct does not depend on whether the children of the spouse of a judge’s child are relatives within the sixth degree of consanguinity or affinity under Judiciary Law § 14. Petitioner did not dispute that he had a familial relationship with Ids stepgrandchildren. As such, his decisión to sit on the case clearly presented a situation “in which the judge’s impartiality might reasonably be questioned” (see 22 NYCRR 100.3 [E] [1]), thereby warranting recusal.