Chapter 20 SPECIFIC PERFORMANCE

JurisdictionNew York

Chapter Twenty

Specific Performance

I. Specific Performance

The equitable remedy of specific performance is a discretionary remedy which is an alternative to the award of damages as a means of enforcing a contract; it is available in the court's discretion when the remedy at law is inadequate.3206 In general, specific performance is appropriate when money damages would be inadequate to protect the "expectation interest of the injured party,"3207 and when performance will not impose a disproportionate or inequitable burden on the breaching party.3208 Specific performance may be awarded only where there is a valid existing contract for which to compel performance.3209 An instance of where specific performance may not be had is where a party reneges on an agreement to adopt children.3210

Since the imposition of an equitable remedy must not itself work an inequity, specific performance should not be an undue hardship;3211 accordingly, while courts may order specific performance to enforce terms of a separation agreement, they are reluctant to issue such an order if it would cause hardship to one spouse without any gain or utility to the other, or in cases where the public interest would be prejudiced thereby.3212 If proven, an oral modification may constitute a defense to specific performance of a separation agreement.3213 While specific performance will not be granted where it would cause unreasonable hardship or injustice, equity will not relieve parties from bargains simply because they are unreasonable or unprofitable.3214

A court is without jurisdiction to direct specific performance of a contract, which contract was executed subsequent to the parties' judgment of divorce; enforcement of such a contract may be had via a separate action for specific performance.3215

The rules of law governing mistake as related to specific performance differ from those governing rescission for mistake. Specific performance may be denied for mistake even though the mistake is the defendant's own act or omission for which plaintiff is not in the least responsible. However, when the mistake is the result of defendant's own carelessness, not contributed to by conduct of the plaintiff, specific performance will be denied only in a case of considerable hardship, or when plaintiff must himself have been aware of the mistake. 3216

An agreement to mediate disputes regarding the selection of a child's school is enforceable by way of specific performance.3217

Malley v. Malley 3218 balanced the equities and declined to direct specific performance to force the sale of the marital residence where the ex-husband's financial position would remain the same irrespective of whether the residence was sold or refinanced in the defendant's name alone, as she was entitled to the net proceeds of a sale. Critically, specific performance would have deprived the former wife of her home. Moreover, she and her mortgage broker stated that she was ready, willing and able to close on her subsequent refinanced mortgage only a few days after the law date selected by the plaintiff.

Terjen v. Terjen3219 declined to order specific performance because both parties were dilatory in complying with the terms of the stipulation under which the husband had the right to purchase the wife's share in the marital residence, which the Appellate Division characterized as a mutual waiver of rights and obligations. The defendant neither demonstrated such substantial performance of his obligations as to entitle him to the equitable remedy of specific performance of the stipulation, nor had he shown that such relief would not produce hardship to the plaintiff.

A. Specific Performance to Sell Property Not Owned at the Time of Agreement but Later Acquired

In Blasich v. Blasich3220 the plaintiff-former-husband brought an action seeking specific performance of a provision in the parties' 1982 separation agreement, which granted him exclusive ownership and possession of the marital home. Title to the home was in the names of the defendant-former-wife's parents at the time and was subsequently conveyed to the defendant-wife. The supreme court held in favor of the defendant. The Appellate Division reversed, holding that the separation agreement survived the parties' judgment of divorce, and that the defendant could enter into an agreement to transfer title to premises in which she only later acquired title.

B. Specific Performance by Decedent's Estate

In Brower v. Brower,3221 the defendant and her husband (the decedent) entered into a separation agreement which provided, inter alia, that the wife was allowed to remain in the marital residence for eight months, when she was to vacate it and the property was to be sold, with the proceeds to be divided equally. The defendant did not vacate the property on the prescribed date, nor was the property ever sold. While still married, the husband died. The Appellate Division held that specific performance to compel the sale of the property was an appropriate remedy because the estate was asserting a contract right that survived the decedent's death and remained enforceable by the estate.

C. Specific Performance to Participate in a Religious Divorce Proceeding

"The First Amendment forbids civil courts from interfering in or determining religious disputes because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs."3222 Agreements to participate in religious divorce proceedings are specifically enforceable because the relief is simply to compel the resistant party to perform a secular obligation to which he contractually bound himself. In this regard, no doctrinal issue need be passed upon, no implementation of religious duty is contemplated, and no interference with religious authority will result. 3223 " Judicial involvement is permitted when the case can be 'decided solely upon the application of neutral principles of . . . law, without reference to any religious principle.' "3224 Concern over trespassing into theological territory in contravention of the First Amendment has been resolved by the United States Supreme Court, as distilled by the Court of Appeals:

In its most recent pronouncement on this issue, however, the Supreme Court, in holding that a State may adopt any approach to resolving religious disputes which does not entail consideration of doctrinal matters, specifically approved the use of the "neutral principles of law" approach as consistent with constitutional limitations. . . . This approach contemplates the application of objective, well-established principles of secular law to the dispute, thus permitting judicial involvement to the extent that it can be accomplished in purely secular terms. 3225

Such contractual obligations are closely analogous to an antenuptial agreement to arbitrate a dispute in accordance with the law and tradition chosen by the parties and entitled to no less dignity than any other civil contract to submit a dispute to a nonjudicial forum, so long as its enforcement violates neither the law nor the public policy of this state.3226 New York courts enforce precisely this type of stipulation by compelling the breaching party to comply by use of fines or by the withholding of civil economic relief3227 as well as imprisonment by way of contempt.3228 Such provisions are neither equated to nor regarded as express provisions requiring the dissolution of marriage (General Obligations Law § 5-311), nor do they have a direct tendency to promote a divorce.3229

In Kaplinsky v. Kaplinsky,3230 the Appellate Division affirmed a finding of contempt against the former-husband for his failure to deliver to the former-wife a religious divorce pursuant to the stipulation of settlement. Held, the hearing held on the contempt application did not deal with a religious issue, in violation of DRL § 253(9), which prohibits the court from inquiring into a religious issue.

The agreement in Koeppel v. Koeppel3231 set forth a mutual covenant to participate in a religious divorce proceeding upon the request of either party:

Upon the successful prosecution of the Wife's action for the dissolution of her marriage, the Husband and Wife . . . covenant and agree that he and she will, whenever called upon, and if and whenever the same shall become necessary, appear before a Rabbi or Rabbinate selected and designated by whomsoever of the parties who shall first demand the same, and execute any and all papers and documents required by and necessary to effectuate a dissolution of their marriage in accordance with the ecclesiastical laws of the Faith and Church of said parties.

The defendant contended that a decree of specific performance would interfere with his freedom of religion under the Constitution. The supreme court stated that

[c]omplying with his agreement does not compel the defendant to practice any religion, not even the Jewish faith to which he still admits adherence. His appearance before the Rabbinate to answer questions and give evidence needed by them to make a decision is not a profession of faith. Specific performance herein would merely require the defendant to do what he voluntarily agreed to do. 3232

In Margulies v. Margulies,3233 the defendant, pursuant to stipulation, voluntarily agreed to "appear before a rabbi to be designated for the purposes of a Jewish religious divorce." His voluntary participation was critical because a Jewish divorce may only be granted if it is initiated by the husband's own free will; such a divorce, if judicially directed, would render it a nullity. The defendant was twice held in contempt and fined for failure to comply therewith. His continued recalcitrance resulted in his commitment to jail for 15 days.

The defendant challenged judicial authority to direct him to participate in a religious divorce, as such is a matter of one's personal convictions...

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