Opinion
April 14, 1989
Appeal from the Supreme Court, Monroe County, Willis, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Special Term erred in refusing to grant defendant's motion seeking leave to amend the divorce decree to incorporate the terms of the separation agreement. The separation agreement clearly manifests the intent of both parties that its provisions would become part of the final judgment (see, Filippini v Filippini, 104 A.D.2d 787, 788).
Defendant, however, was not entitled to an order to compel plaintiff to list the former marital residence for sale. It is well established that where the terms of a separation agreement are clear and unambiguous, the intent of the parties is to be found within the four corners of the agreement (Nichols v Nichols, 306 N.Y. 490, 496, rearg denied 307 N.Y. 677). Here, the terms of the separation agreement are clear and unambiguous with respect to plaintiff having the "right to sole occupancy and possession" of the former marital residence so long as she remained unmarried or until she elected to sell it. Plaintiff has neither remarried nor made an election to sell. Under these circumstances, defendant cannot compel a sale of the residence.