| Canarelli v Canarelli |
| 2009 NY Slip Op 00322 [58 AD3d 658] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Peter J. Canarelli, Respondent, v Marilyn Canarelli,Appellant. |
—[*1] Polin, Prisco & Villafane, Glen Cove, N.Y. (Armand J. Prisco of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment entered September19, 2006, the defendant appeals from (1) an order of the Supreme Court, Nassau County(Falanga, J.), entered August 21, 2007, as amended by an order of the same court datedSeptember 26, 2008, which, inter alia, granted those branches of the plaintiff's motion whichwere to enforce certain provisions of a stipulation of settlement that was incorporated, but notmerged into the judgment of divorce, and certain provisions of the judgment of divorce, to theextent of appointing the plaintiff the temporary receiver of certain real and personal property forthe purpose of disposing of that property in accordance with the stipulation of settlement and thejudgment of divorce, and (2) an order of the same court entered August 29, 2007, whichappointed a referee to sell a certain parcel of real property located in Jewett, New York.
Ordered that the appeal from the order entered August 29, 2007 is dismissed as academic asthat order was vacated by an order dated September 26, 2008; and it is further,
Ordered that the order entered August 21, 2007, as amended, is affirmed, with one bill ofcosts.
While a stipulation of settlement may be set aside where there is evidence of fraud,overreaching, mistake, or duress (see Matter of Dillon v Dillon, 257 AD2d 621 [1999]),the defendant failed [*2]to tender evidence in admissible formsufficient to warrant a hearing on her motion to vacate the parties' stipulation (see O'Shell v O'Shell, 54 AD3d914, 915 [2008]; Shockome vShockome, 53 AD3d 610 [2008]; Chernow v Chernow, 51 AD3d 705, 706 [2008]). The defendant'scontention that the appointment of a receiver to sell certain real property should be set asidebecause of a purported failure to comply with the court rules (see 22 NYCRR part 36)was not raised before the Supreme Court and, therefore, is not properly before this Court (seeSandoval v Juodzevich, 293 AD2d 595, 595-596 [2002]; Mourounas v Shahin, 291AD2d 537 [2002]; Weber v Jacobs, 289 AD2d 226 [2001]). Rivera, J.P., Florio,Angiolillo, McCarthy and Chambers, JJ., concur.