Massimi v. Massimi, 35 A.D.3d 400 (N.Y. App. Div. 2006). · Go Syfert
Massimi v. Massimi, 35 A.D.3d 400 (N.Y. App. Div. 2006). Cases Citing This Book View Copy Cite
43 citation events (43 in the last 25 years) across 3 distinct courts.
Strongest positive: Finley v. Turner (nyappdiv, 2026-05-20)
Treatment trajectory · 2008 → 2026 · click a year to view as-of
2008 2017 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
discussed Cited as authority (rule) Finley v. Turner
N.Y. App. Div. · 2026 · confidence medium
Additionally, contrary to the plaintiff's contention, the court properly declined to award the plaintiff any portion of a certain Finley Management bank account, since the plaintiff failed to offer any proof as to the value of Finley Management, the defendant's business ( see Massimi v Massimi , 35 AD3d 400, 403).
discussed Cited as authority (rule) Borzilleri v. Borzilleri (2×)
N.Y. App. Div. · 2026 · confidence medium
The court's credibility findings will not be disturbed ( see Bailey v Bailey , 232 AD3d at 576). "'Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property'" ( Spera v Spera , 71 AD3d 661, 664 [internal quotation marks omitted], quoting Massimi v Massimi , 35 AD3d 400, 402).
discussed Cited as authority (rule) Parkoff v. Parkoff
N.Y. App. Div. · 2021 · confidence medium
The Supreme Court providently exercised its discretion in determining that the plaintiff's shares of Verizon and Exxon Mobil stock that were acquired during the marriage were [*3]marital property. "'Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property'" ( Spera v Spera , 71 AD3d 661, 664 , quoting Massimi v Massimi , 35 AD3d 400, 402 [internal quotation marks omitted]; see Fields v Fields , 15 NY3d 158, 163 ; Ferrante v Ferrante , 186 AD3d 566, 568 …
discussed Cited as authority (rule) Ferrante v. Ferrante
N.Y. App. Div. · 2020 · confidence medium
"Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property" ( Massimi v Massimi , 35 AD3d 400, 402 [internal quotation marks omitted]; see Fields v Fields , 15 NY3d 158, 163 ).
discussed Cited as authority (rule) Iacono v. Iacono
N.Y. App. Div. · 2016 · confidence medium
Contrary to the Supreme Court’s determination, the plaintiff failed to establish entitlement to a separate property credit for the separate property funds he used in the purchase of the first marital home, as he offered no clear and convincing evidence to substantiate the specific amount claimed (see Massimi v Massimi, 35 AD3d 400, 402 [2006]), or that the comingling was created solely for convenience without an inten *974 tion of creating a marital beneficial interest (see Renck v Renck, 131 AD3d at 1149 ; Pappas v Pappas, 140 AD3d 838 [2016]).
discussed Cited as authority (rule) Maddaloni v. Maddaloni
N.Y. App. Div. · 2016 · confidence medium
Moreover, where separate property has been commingled with marital property, there is a presumption that the commingled funds constitute marital property (see Scher v Scher, 91 AD3d at 846 ; Massimi v Massimi, 35 AD3d 400, 402 [2006]).
discussed Cited as authority (rule) Goldman v. Goldman
N.Y. App. Div. · 2015 · confidence medium
Contrary to the defendant’s contention, he failed to establish that the funds used to pay for the construction of the marital residence came from his separate property (see Golden v Golden, 98 AD3d 647, 649 [2012]; Scher v Scher, 91 AD3d *1108 842, 846 [2012]; Massimi v Massimi, 35 AD3d 400, 402 [2006]; Lynch v King, 284 AD2d 309 [2001]).
discussed Cited as authority (rule) Walker v. Walker
N.Y. App. Div. · 2015 · confidence medium
Under the circumstances of this case, where the children have always at *807 tended private school, the parties each attended private colleges and graduate school, and the parties have the financial ability to pay, it was not an improvident exercise of discretion for the court to decline to impose a SUNY cap (see Evans v Evans, 55 AD3d 1079, 1083 [2008]; Massimi v Massimi, 35 AD3d 400, 402-403 [2006]).
discussed Cited as authority (rule) Overton v. Overton
N.Y. App. Div. · 2014 · confidence medium
The titled spouse may seek to rebut that presumption that any commingled funds became marital property by tracing the source of the funds with sufficient particularity (see Masella v Masella, 67 AD3d 749, 750 [2009]; Massimi v Massimi, 35 AD3d 400, 402 [2006]).
discussed Cited as authority (rule) Overton v. Overton
N.Y. App. Div. · 2014 · confidence medium
The titled spouse may seek to rebut that presumption that any commingled funds became marital property by tracing the source of the funds with sufficient particularity (see Masella v Masella, 67 AD3d 749, 750 [2009]; Massimi v Massimi, 35 AD3d 400, 402 [2006]).
discussed Cited as authority (rule) MARLINSKI, GEORGE R. v. MARLINSKI, NANCY A.
N.Y. App. Div. · 2013 · confidence medium
The husband is thus “entitled to recoup [his] equitable share of the marital funds used to reduce the indebtedness and pay for improvements to the marital abode” (Massimi v Massimi, 35 AD3d 400, 402 [2006], lv denied 9 NY3d 801 [2007]; see Markopoulos v Markopoulos, 274 AD2d 457, 458-459 [2000]; Zelnik v Zelnik, 169 AD2d 317, 330 [1991]).
discussed Cited as authority (rule) Scher v. Scher (2×)
N.Y. App. Div. · 2012 · confidence medium
Where separate property has been commingled with marital property, there is a presumption that the commingled funds constitute marital property (see Massimi v Massimi, 35 AD3d 400, 402 [2006]; Wade v Steinfeld, 15 AD3d 390, 391 [2005]; Lynch v King, 284 AD2d 309, 310 [2001]; Judson v Judson, 255 AD2d 656, 657 [1998]).
discussed Cited as authority (rule) DeGroat v. DeGroat
N.Y. App. Div. · 2011 · confidence medium
At trial, the defendant failed to demonstrate with “sufficient particularity” that any money in the investment account was directly traceable to those stock options that were originally his separate property (Massimi v Massimi, 35 AD3d 400, 402 [2006]), inasmuch as he did not produce relevant documentation as to deposits and withdrawals for the account.
discussed Cited as authority (rule) Aloi v. Simoni
N.Y. App. Div. · 2011 · confidence medium
Even if the stipulated premarital net worth included the sale value of two residential properties, as the defendant claims, the defendant failed to trace the funds from the sale of the residential properties and prove that they remained separate (see Massimi v Massimi, 35 AD3d 400, 402 [2006]).
discussed Cited as authority (rule) Spera v. Spera
N.Y. App. Div. · 2010 · confidence medium
Accordingly, the Supreme Court lacked an evidentiary basis upon which to make any award to the plaintiff with respect to these claimed investment funds (see Burtchaell v Burtchaell, 42 AD3d 783, 786 [2007]; Seckler-Roode v Roode, 36 AD3d 889, 890 [2007]; Massimi v Massimi, 35 AD3d 400, 403 [2006]; Burgio v Burgio, 278 AD2d 767, 769 [2000]).
discussed Cited as authority (rule) Phillips v. Haralick
N.Y. App. Div. · 2010 · confidence medium
The defendant failed to overcome the presumption that he commingled separate funds with marital funds with respect to this investment (see Hartog v Hartog, 85 NY2d 36, 49 [1995]; Massimi v Massimi, 35 AD3d 400, 402 [2006]; Diaco v Diaco, 278 AD2d 358, 359 [2000]).
discussed Cited as authority (rule) Schwartz v. Schwartz
N.Y. App. Div. · 2009 · confidence medium
“Property acquired during the marriage is presumed to be marital property” (Steinberg v Steinberg, 59 AD3d 702, 704 [2009]; see Embury v Embury, 49 AD3d 802, 804 [2008]; Massimi v Massimi, 35 AD3d 400, 402 [2006]), and Domestic Relations Law § 236 (B) (1) (c) defines marital property as “all property acquired by either or both spouses during the marriage and before . . . the commencement of a matrimonial action, regardless of the form in which title is held.” Although title to the marital residence was held by the parties as tenants in common with a 75% interest to the plaintiff and a…
discussed Cited as authority (rule) Masella v. Masella
N.Y. App. Div. · 2009 · confidence medium
The defendant may seek to rebut the presumption that any commingled funds became marital property by tracing out the source of the funds with sufficient particularity (see Massimi v Massimi, 35 AD3d 400, 402 [2006]; Wade v Steinfeld, 15 AD3d 390, 391 [2005]).
discussed Cited as authority (rule) Reed v. Reed
N.Y. App. Div. · 2008 · confidence medium
Defendant “failed to trace the source of the funds [in the Quercus Trust] with sufficient particularity to rebut the presumption that they were marital property” (Massimi v Massimi, 35 AD3d 400, 402 [2006], lv denied 9 NY3d 801 [2007]) and, indeed, plaintiff established that the entirety of the Quercus Trust was transmuted into marital property as a result of commingling (see generally Haas v Haas, 265 AD2d 887, 888 [1999]; Rheinstein v Rheinstein, 245 AD2d 1024, 1025 [1997]).
discussed Cited as authority (rule) Kilkenny v. Kilkenny
N.Y. App. Div. · 2008 · confidence medium
The defendant is thus entitled to share equitably in that increased value (see Michelini v Michelini, 47 AD3d 902 [2008]; Massimi v Massimi, 35 AD3d 400, 402 [2006]; Falgoust v Falgoust, 15 AD3d 612 [2005]).
discussed Cited as authority (rule) Embury v. Embury
N.Y. App. Div. · 2008 · confidence medium
Contrary to the defendant’s contention, the Supreme Court properly determined that certain real property located in Yorktown Heights, New York, which was gifted to the plaintiff by her mother during the marriage, was the plaintiffs separate property. “ ‘Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property’ ” (Massimi v Massimi, 35 AD3d 400, 402 [2006], quoting Judson v Judson, 255 AD2d 656, 657 [1998]; see Domestic Relations Law § 236 [B]…
discussed Cited as authority (rule) Bailey v. Bailey
N.Y. App. Div. · 2008 · confidence medium
The remaining accounts in question contained commingled marital property and separate property, and defendant “failed to trace the source of the funds [that he contended were separate property] with sufficient particularity to rebut the presumption that they were marital property” (see Massimi v Massimi, 35 AD3d 400, 402 [2006], lv denied 9 NY3d 801 [2007]).
discussed Cited "see, e.g." L.K.F v. M.T.F
N.Y. Sup. Ct., Nassau Cty. · 2024 · signal: see also · confidence low
Ferrante v. Ferrante, 186 AD3d 566 (2d Dept. 2020); see also Massimi v. Massimi, 35 AD3d 400 (2d Dept. 2006); see also Palazolo v. Palazolo, 200 AD3d 700 (2d Dept. 2021) (statutory presumption that all property acquired by either spouse during the marriage, unless clearly separate, is marital property, regardless of the form in which title is held).
discussed Cited "see, e.g." L.K.F v. M.T.F
N.Y. Sup. Ct., Nassau Cty. · 2024 · signal: see also · confidence low
Ferrante v. Ferrante, 186 AD3d 566 (2d Dept. 2020); see also Massimi v. Massimi, 35 AD3d 400 (2d Dept. 2006); see also Palazolo v. Palazolo, 200 AD3d 700 (2d Dept. 2021) (statutory presumption that all property acquired by either spouse during the marriage, unless clearly separate, is marital property, regardless of the form in which title is held).
discussed Cited "see, e.g." Yu-Dan Wong v. Kenneth Ming Wei Wong
N.Y. App. Div. · 2015 · signal: see also · confidence medium
Appellant has not shown that the property is not marital property, as there is evidence in the record that defendant acquired the property during bis marriage with plaintiff (see Domestic Relations Law § 236 [B] [1] [c]; see also Massimi v Massimi, 35 AD3d 400, 402 [2d Dept 2006], lv denied 9 NY3d 801 [2007]).
discussed Cited "see, e.g." Nidositko v. Nidositko
N.Y. App. Div. · 2012 · signal: see also · confidence medium
In determining the value of the portion of this asset subject to equitable distribution, the Supreme Court correctly considered the appreciation in value of the home during the marriage after it was converted to marital property (see Cleary v Cleary, 171 AD2d 1076, 1077 [1991]; Monks v Monks, 134 AD2d 334, 336 [1987]; Coffey v Coffey, 119 AD2d 620, 622-623 [1986]; see also Massimi v Massimi, 35 AD3d 400, 402 [2006]).
Retrieving the full opinion text from the archive…
Richard P. Massimi
v.
Melissa A. Massimi
Appellate Division of the Supreme Court of the State of New York.
Dec 5, 2006.
35 A.D.3d 400
Cited by 33 opinions  |  Published

[*401] In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Orange County (Green, J.H.O.), dated March 22, 2005, which, after a nonjury trial, inter alia, equitably distributed the parties’ marital property and directed the husband to pay child support in the sum of $500 per week.

Ordered that the judgment is modified, on the facts and in the exercise of discretion, (1) by deleting from the first decretal paragraph thereof the words “the sum of $102,000.00 constituting a 40% interest” and substituting therefor the words “the sum of $76,500 constituting a 30% interest,” (2) by deleting the second decretal paragraph thereof (“capital contribution”), (3) by deleting from the seventh decretal paragraph thereof (“marital abode”) the words “the defendant shall have no claim to the former marital abode” and substituting therefor the words “the defendant shall be entitled to an equitable portion of the value of the marital abode in the sum of $260,000 representing her interest in total house appreciation during the marriage and payments toward the mortgage made with marital income,” (4) by deleting from the nineteenth decretal paragraph thereof the words “the plaintiff shall have no obligation to contribute in whole or in part to the private school tuition of the child Alex Massimi” and substituting therefor the words' “the plaintiff shall pay his pro rata share of the private school tuition of the child Alex Massimi,” (5) by deleting from the forty-first decretal paragraph thereof the words “there is no equitable distribution issue with respect to Powelton Club membership” and substituting therefor the words “the plaintiff shall reimburse the defendant for his pro rata share of the annual family membership dues in the Powelton Club up until the time of trial,” and (6) by deleting the sixteenth (“Ryan, Beck & Co.”), eighteenth (“CH Energy Group”), twenty-third (“Health Care Property Investors, Inc.”), thirty-first (“HMC International, LLC”), thirty-second (“Health Care Property Investors, Inc.”), thirty-sixth (“55 Ridge Road property”), thirty-eighth (“loans made to John Pilla”), and fortieth (“cash surrender value of Valley Forge Life Insurance policy”) decretal paragraphs thereof and substituting therefor a decretal paragraph providing that “As to the Ryan, Beck & Co. account, CH Energy Group account, Health Care[*402] Property Investors, Inc., account, HMC International, LLC, hedge fund, 55 Ridge Road real property, loans made to John Pilla, and the cash surrender value of the Valley Forge Life Insurance policy, the defendant shall be entitled to an equitable portion of the collective values thereof in the sum of $201,471.54; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

“Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property” (Judson v Judson, 255 AD2d 656, 657 [1998]).

The plaintiff commingled certain separate funds with marital funds and assets (see Hartog v Hartog, 85 NY2d 36, 49 [1995]; Lynch v King, 284 AD2d 309 [2001]), and failed to trace the source of the funds with sufficient particularity to rebut the presumption that they were marital property (see Bennett v Bennett, 13 AD3d 1080 [2004]). Consequently, to the extent that the plaintiff applied marital funds to his separately titled property, the defendant is entitled to an equitable distribution of the values thereof (see Kirshenbaum v Kirshenbaum, 203 AD2d 534, 535 [1994]; Sagarin v Sagarin, 251 AD2d 396, 397 [1998]).

Likewise, the defendant is entitled to recoup her equitable share of the marital funds used to reduce the indebtedness and pay for improvements to the marital abode (see Alessi v Alessi, 289 AD2d 782, 783 [2001]; Zelnik v Zelnik, 169 AD2d 317, 330 [1991]). She also is entitled to an equitable share of the appreciation in value of the marital residence due to the evidence of indirect nonfinancial contributions to the household (see Price v Price, 69 NY2d 8, 11 [1986]). Upon consideration of all relevant factors set forth in Domestic Relations Law § 236 (B) (5) (d) (see O’Brien v O’Brien, 66 NY2d 576, 589 [1985]; Majauskas v Majauskas, 61 NY2d 481, 493-494 [1984]), the defendant is entitled to an equitable distribution award against the marital abode in the sum of $260,000.

The record supports merely a 30% distributive award to the plaintiff of the value in the jointly held corporation, M & R Energy Resources Corp. (see Romano v Romano, 139 AD2d 979 [1987]). Further, the plaintiffs testimony that he objected to the child’s attending private school is belied by having toured prospective schools and by having paid one year’s tuition, and the plaintiffs finances indicate an ability to afford the costs of the child’s private school tuition (see Valente v Valente, 114 AD2d 951 [1985]). Finally, the court erred in failing to direct the plaintiff to reimburse the defendant for his pro rata share of[*403] the parties’ annual family membership dues in Powelton Country Club up until the time of trial.

The trial court properly determined that the defendant was not entitled to any portion of business assets that include Newburgh Dye & Printing, Inc., Atlas Textile Corporation, All American Textiles Corp., Mass Textiles Services, Inc., and MAT Newburgh Enterprises, Inc. However, the evidence demonstrated that certain other contested assets were commingled with, or funded at least in part by, marital funds. The trial court, therefore, erred in failing to award the defendant an equitable distributive share of such assets (see Judson v Judson, supra at 657), namely, the Ryan, Beck & Co. account, CH Energy Group account, Health Care Property Investors, Inc., account, HMC International, LLC, hedge fund, 55 Ridge Road real property, a nonforgiven $40,000 debt owed by John Pilla, and the cash surrender value of the plaintiffs Valley Forge Life Insurance policy. Upon consideration of all factors set forth in Domestic Relations Law § 236 (B) (5) (d) as relevant from the record (see O’Brien v O’Brien, supra at 589; Majauskas v Majauskas, supra at 493-494), the defendant is entitled to an equitable distributive award of $201,471.54 as to these collective assets. While the defendant would also be entitled to an equitable share of Remy Real Estate Corporation (hereinafter Remy), the record lacks adequate proof as to its value and, hence, no award can be made as to Remy (see Amisson v Amisson, 251 AD2d 274 [1998]; Vainchenker v Vainchenker, 242 AD2d 620, 621 [1997]; Burgio v Burgio, 278 AD2d 767, 769-770 [2000]).

We agree with the trial court’s determination of the plaintiffs child support obligation based upon the standard of living the child would have enjoyed had the parties’ marriage not dissolved, as specifically noted by the court below, along with our own consideration of the plaintiffs financial resources and the parties’ disparate incomes (see Domestic Relations Law § 240 [1-b] [c] [3]; [fl; Matter of Cassano v Cassano, 85 NY2d 649, 655 [1995]).

The defendant’s remaining contentions, including but not limited to her arguments regarding the defined benefit plans and the Morgan Stanley Dean Witter accounts, are without merit. Miller, J.P, Ritter, Spolzino and Dillon, JJ., concur.