| Lusk v Lusk |
| 2008 NY Slip Op 07969 [55 AD3d 408] |
| October 21, 2008 |
| Appellate Division, First Department |
| Peter A. Lusk, Appellant, v Catherine G. Lusk,Respondent. |
—[*1] Mayerson Stutman Abramowitz Royer LLP, New York (Alton L. Abramowitz of counsel),for respondent.
Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered November 13,2007, awarding defendant recovery from plaintiff in the amount of $649,901.79, plus interest,and bringing up for review an order, same court and Justice, entered August 22, 2007, which,inter alia, granted defendant's motion to direct plaintiff to remit to her 50% of the parties' 1997federal income tax refund, unanimously affirmed, without costs. Appeal from the aforesaid orderunanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Section 8.4 of the parties' separation agreement provides, "If a tax refund or credit is due forany joint return filed by the parties, such refund or credit shall be divided equally by the parties."The subject refund was issued for the 1997 tax year, for which year the parties filed a jointfederal income tax return. Accordingly, defendant is entitled to half of the refund (see Whitev Continental Cas. Co., 9 NY3d 264, 267 [2007]; W.W.W. Assoc. v Giancontieri, 77NY2d 157, 162 [1990]).
We reject plaintiff's argument that, because the refund resulted from postdivorce businesslosses that were carried back to 1997, the refund is his separate property and not marital propertyto which defendant has a claim. The disposition of the tax refund is governed by the parties'separation agreement (see Matter of Meccico v Meccico, 76 NY2d 822 [1990]). Nor isthe agreement ambiguous merely because it does not address the specific contingency of a taxrefund obtained as a result of the filing of a postdivorce, amended return (see Reiss vFinancial Performance Corp., 97 NY2d 195, 199 [2001]). Extrinsic evidence as to theparties' intent is therefore inadmissible (id.).[*2]
We have considered plaintiff's remaining contentions andfind them unavailing. Concur—Tom, J.P., Gonzalez, Williams, Moskowitz and Freedman,JJ.