| Andersen v Andersen |
| 2010 NY Slip Op 00457 [69 AD3d 773] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Harry Andersen, Appellant, v Diane Andersen,Respondent. |
—[*1]
In an action, inter alia, for a judgment declaring that section 14 (f) of a stipulation ofsettlement dated March 18, 2003, is null and void, the plaintiff appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Nassau County (Grob, Ct. Atty. Ref.),entered April 30, 2008, as, upon a decision of the same court dated March 17, 2008, made after ahearing, declared that section 14 (f) of the stipulation of settlement remains in full force andeffect as an accurate reflection of the parties' intent.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff former husband and the defendant former wife divorced after 30 years ofmarriage. To settle their matrimonial action, they signed a stipulation of settlement, section 14thereof providing for the equitable distribution of marital property. Section 14 (a) of thestipulation provided that "[a]ll of the personalty in the possession of the Husband, including bankaccounts, Bonds, and/or Individual Retirement Accounts, Annuity contracts, any pensionrights he may have, now or in the future, his personal effects and clothing, shall bedeemed the Husband's property, pursuant to a distribution of marital property and/ordesignation of separate property" (emphasis added). However, section 14 (f) thereof providedthat "[a]ll pension rights that the husband has acquired with the Port Washington School District,including any defined benefit plan, 457K, or separate annuity, during the marriage are to bedivided equally by a Qualified Domestic Relations Order, to be prepared by the wife's attorney,pursuant to the 'Maj[a]uskas' formula."
The plaintiff brought this action, inter alia, to declare section 14 (f) null and void, arguingthat it was in conflict with section 14 (a) and that he did not intend for his pension to beconsidered in the division of marital property. After a hearing, the Supreme Court found thatsection 14 (f) of the agreement should remain in full force and effect. The judgment appealedfrom declared that section 14 (f) of the stipulation of settlement remains in full force and effectas an accurate reflection of the parties' intent. The plaintiff appeals from so much of thejudgment as made this declaration.
A stipulation of settlement which is incorporated but not merged into a judgment of [*2]divorce retains the character of an independent contract andsurvives as a basis for suit (see Rainbow v Swisher, 72 NY2d 106, 109 [1988]; Frydman v Frydman, 32 AD3d455 [2006]; Douglas vDouglas, 7 AD3d 481, 482 [2004]). As such, it is a subject to general principles ofcontract construction (see Matter of Meccico v Meccico, 76 NY2d 822 [1990]; seealso Malleolo v Malleolo, 287 AD2d 603 [2001]; Matter of Jenkins v Jenkins, 260AD2d 380 [1999]). Where there is an inconsistency between a specific provision and a generalprovision of a contract, the specific provision controls (see Muzak Corp. v Hotel TaftCorp., 1 NY2d 42, 46 [1956]; Warshof v Rochester Community Sav. Bank, 286AD2d 920, 922 [2001]; Sumitomo Bank of N.Y. Trust Co. v Town of N. Hempstead,278 AD2d 402, 404 [2000]; Aguirre v City of New York, 214 AD2d 692, 693 [1995]).
Here, the Supreme Court properly found that section 14 (a) of the stipulation was a generalprovision, while section 14 (f) was a specific provision, which accurately reflected the parties'intent, and therefore, remained in full force and effect. Covello, J.P., Angiolillo, Lott and Roman,JJ., concur.