Opinion
February 28, 1985
Appeal from the Supreme Court, New York County (David H. Edwards, Jr., J.).
Plaintiff brought this action to recover under the escalation provision contained in a separation agreement subsequently incorporated, but not merged into, a divorce decree. Defendant counterclaimed, alleging overpayments. The agreement was entered into on September 29, 1967 and was followed by a Mexican divorce entered on October 3, 1967. The agreement provided for alimony and for support and maintenance of the child of the marriage. It also provided for escalation of alimony and support and maintenance in the event that defendant's income exceeded a certain amount.
In March 1983, plaintiff brought action against defendant seeking a determination of the amounts due under the escalation clause and payment thereof. The defendant counterclaimed, alleging that pursuant to a stipulation between the parties, he had paid to plaintiff an amount in excess of the sums specified in the separation agreement and, to the extent that the sums paid exceeded the sums to which plaintiff was entitled under the separation agreement, he sought recoupment.
Defendant thereafter moved for summary judgment and plaintiff cross-moved to compel production of financial records previously sought in two notices to produce. Special Term granted plaintiff's cross motion. It denied the motion for summary judgment, noting the existence of questions of fact. In so doing, however, it noted correctly that all claims by both parties antedating the commencement of the action by six years were barred by CPLR 213. However, no such provision was contained in the order subsequently entered. We modify to the extent only of including a decretal paragraph so providing in the order.
Concur — Sandler, J.P., Bloom, Fein and Milonas, JJ.