Opinion
March 23, 1993
Appeal from the Supreme Court, New York County (Jacqueline Silbermann, J.).
While in 1986 we held that summary judgment was premature in this case since, inter alia, no relevant disclosure had taken place ( 125 A.D.2d 275), we now find that, after completion of discovery, summary judgment is appropriate. It is clear from all the evidence that the parties' separation agreement did not intend that defendant's capital gains distributions, such as the one at issue, be included within the term "earned income" to which plaintiff would be entitled to a percentage thereof. Indeed, while the instant distribution is from a partnership of which defendant is a member, defendant did not "provide services" to that partnership, so that such distribution could not constitute "earned income" within the meaning of the terms of the separation agreement.
We have considered all other claims and find them to be of no merit.
Concur — Sullivan, J.P., Wallach, Kupferman and Rubin, JJ.