Opinion
570941/02.
Decided March 31, 2004.
Plaintiff appeals from so much of an order of the Civil Court, New York County, dated August 12, 2002 (Debra Rose Samuels, J.) as denied his motion for summary judgment on the first and second causes of action as against defendant Elizabeth Rosado.
Order dated August 12, 2002 (Debra Rose Samuels, J.) modified by granting plaintiff summary judgment on his first cause of action for breach of contract as against defendant Elizabeth Rosado in the principal sum of $6,348.23, plus interest from October 30, 2001; as modified, order affirmed, with $10 costs to plaintiff-appellant. The Clerk is directed to enter judgment in favor of plaintiff accordingly.
PRESENT: HON. WILLIAM J. DAVIS, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
Plaintiff commenced this action against his former wife for breach of a settlement agreement and related relief. Defendant agreed to pay the balance due on all joint marital debt, including $1,594.52 on a Sears credit card, in exchange for plaintiff signing over his one-half interest in the marital residence to defendant. Defendant further agreed to hold plaintiff harmless in connection with that debt and to return the Sears credit card (issued in plaintiff's name) to plaintiff upon execution of the settlement agreement. The settlement agreement expressly prohibited oral modification; specified that it constituted the entire agreement of the parties (Article 19); and was incorporated by reference, in the parties' subsequent judgment of divorce.
Defendant concededly failed to pay off the balance due and to close the Sears account, incurring additional debt in plaintiff's name billed to plaintiff's former marital residence. Civil Court denied plaintiff's motion for summary judgment, finding triable issues as to whether there was an oral modification of the parties' settlement agreement. We disagree.
The marital settlement agreement was not, by its terms, subject to oral modification and defendant "has failed to raise a triable issue as to the validity of the alleged modification by adducing proof of conduct by the parties unequivocally referable to the alleged modification" (Egan v. O'Brien, 291 AD2d 244; see also, Rose v. Spa Realty Assocs., 42 NY2d 338, 343-344; General Obligation Law § 15-301). Nor has defendant "adduced evidence of circumstances upon which plaintiff might be estopped from relying upon the written marital settlement agreement" (Egan v. O'Brien, supra, at 244-245). In light of plaintiff's prima facie showing of entitlement to accelerated relief, defendant's conclusory assertion that plaintiff orally agreed to allow her to use the Sears credit card was insufficient to raise a triable issue (Zuckerman v. City of New York, 49 NY2d 557, 562; Jacobson v. Jacobson, 231 AD2d 494, 495). Accordingly, plaintiff's motion for summary judgment should have been granted.
This constitutes the decision and order of the court.