Opinion
April 3, 1995
Appeal from the Supreme Court, Nassau County (O'Brien, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified, by deleting the award of interest; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of interest in accordance with Domestic Relations Law § 244; and it is further,
Ordered that the respondent is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).
The appellant contends that he was entitled to the cancellation of arrears, or the suspension of future support obligations pursuant to Domestic Relations Law § 241. We reject the appellant's contentions for reasons stated by Justice O'Brien at the Supreme Court, Nassau County.
The appellant failed to proffer any evidence of affirmative conduct demonstrating a waiver of legal rights on the part of the former wife. Thus, he was not entitled to a hearing on his contention that she waived her right to collect arrears (see, Mitchell v Mitchell, 170 A.D.2d 585).
Pursuant to Domestic Relations Law § 244, interest on arrears "shall be computed from the date on which payment was due, at the prevailing rate of interest on judgments as provided in the civil practice law and rules". It appears in this case that interest on the arrears was improperly calculated. We agree with the respondent that the preferred remedy in this situation is a motion in the court of original instance. However, since the judgment is before us on appeal, we vacate the award of interest and remit for a recalculation in accordance with Domestic Relations Law § 244 (see, Pizzuto v Pizzuto, 162 A.D.2d 443).
The appellant's remaining contentions are either unpreserved for appellate review or without merit. Bracken, J.P., Thompson, Hart and Goldstein, JJ., concur.