| Smulevitz v Smulevitz |
| 2012 NY Slip Op 00356 [91 AD3d 752] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Jill Smulevitz, Appellant, v Marc Smulevitz,Respondent. |
—[*1] Louis S. Sroka, Jericho, N.Y., for respondent.
In an action, inter alia, to reform the parties' stipulation of settlement, which wasincorporated but not merged into their judgment of divorce entered December 17, 2007, theplaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, NassauCounty (Falanga, J.), dated July 16, 2010, as denied her motion to direct the defendant, duringthe pendency of this action, to name her as the beneficiary of any and all pre-retirement deathbenefits in a certain pension plan and to restrain the defendant from taking any action affectingthe plaintiff's rights in the pension plan, and granted that branch of the defendant's cross motionwhich was for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the defendant's cross motion which wasfor summary judgment dismissing the complaint in this action, in which the plaintiff seeks toreform a stipulation of settlement, entered into by the parties in connection with their divorceaction, which did not provide for the equitable distribution of the defendant's pension plan. Thedefendant made a prima facie showing of entitlement to judgment as a matter of law and, inopposition, the plaintiff failed to raise a triable issue of fact as to a mutual mistake relating to thevalue of the pension plan (see Etzion vEtzion, 62 AD3d 646, 652 [2009]; Hannigan v Hannigan, 50 AD3d 957, 957-958 [2008]; Kojovic v Goldman, 35 AD3d 65,71 [2006]).
The plaintiff's remaining contentions are without merit.
We decline to consider the defendant's request for an award of an attorney's fee incurred inconnection with this appeal. This request should be addressed in the first instance to the SupremeCourt (see Kane v Rudansky, 309 AD2d 785 [2003]; Contractors Cas. & Sur. Co. v535 Broadhollow Realty, 276 AD2d 738 [2000]). Rivera, J.P., Dickerson, Eng and Roman,JJ., concur.