Opinion
2002-00350
November 7, 2002.
December 23, 2002.
In an action, inter alia, for a judgment declaring that article 10 of the parties' stipulation of settlement entered into on August 17, 1981, is void, the plaintiff former husband appeals from an order of the Supreme Court, Nassau County (Stack, J.), dated November 26, 2001, which denied his motion to preliminarily enjoin certain payments of an equitable distribution award pursuant to the stipulation of settlement, and granted the defendant former wife's cross motion to dismiss the complaint and for an award of an attorney's fee.
Rubin Purcell, LLP, Hauppauge, N.Y. (David J. Rubin of counsel), for appellant.
Schlissel, Ostrow, Karabatos, Poepplein Taub, PLLC, Mineola, N.Y. (E. Judson Cender of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, DANIEL F. LUCIANO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion which was for an award of an attorney's fee, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed, with costs to the defendant, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that article 10 of the parties' stipulation of settlement entered into on August 17, 1981, is valid.
The Supreme Court properly denied the plaintiff's motion to preliminarily enjoin certain payments of an equitable distribution award contained in the stipulation of settlement entered into by the parties on August 17, 1981. The plaintiff failed to demonstrate the likelihood of success on the merits, irreparable harm in the absence of injunctive relief, and that the balance of the equities are in his favor (see Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860).
Further, the Supreme Court properly granted that branch of the defendant's cross motion which was to dismiss the complaint. Stipulations of settlement are favored by the courts and will not be set aside in the absence of fraud, overreaching, mistake, or duress (see Christian v. Christian, 42 N.Y.2d 63; Kourakos v. Kourakos, 245 A.D.2d 342; Enright v. Vasile, 205 A.D.2d 732, 733). There is no basis for vacating the subject provision. A stipulation of settlement is a contract subject to principles of contract interpretation (see Rainbow v. Swisher, 72 N.Y.2d 106; Howard v. Howard, 292 A.D.2d 345; Moran v. Moran, 289 A.D.2d 544, 545; Karafiol v. Karafiol, 259 A.D.2d 522). Where, as here, the subject provision is clear and unambiguous, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence (see Rainbow v. Swisher, supra; Moran v. Moran, supra). The language of article 10 of the stipulation of settlement supports a finding that the parties intended a "distributive award * * * payable * * * over a period of time in fixed amounts" (Domestic Relations Law § 236[B][1][b]). Further, the parties were represented by independent counsel during the negotiations of the stipulation of settlement (see Beutel v. Beutel, 55 N.Y.2d 957; Kazimierski v. Weiss, 252 A.D.2d 481) and they accepted the benefits thereof for 20 years (see Beutel v. Beutel, supra; Star v. Star, 260 A.D.2d 363; McDougall v. McDougall, 129 A.D.2d 685, 686).
That branch of the defendant's cross motion which was for an award of an attorney's fee should have been denied. The Supreme Court lacked statutory authority to make such an award under either Domestic Relations Law § 237 or § 238 (see generally Galyn v. Schwartz, 56 N.Y.2d 969; Brady v. Brady, 271 A.D.2d 563; Philson v. Philson, 74 A.D.2d 866).
We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a judgment making a declaration in favor of the defendant (see Lanza v. Wagner, 11NY2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
ALTMAN, J.P., S. MILLER, LUCIANO and RIVERA, JJ., concur.