Sileo v. Sileo
| Decision Date | 09 December 1985 |
| Citation | 495 N.Y.S.2d 728,115 A.D.2d 535 |
| Parties | Sharon SILEO, Appellant, v. Anthony V. SILEO, M.D., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Richard J. Finamore, Great Neck, for appellant.
Guy R. Vitacco, P.C., Elmhurst, for respondent.
Before GIBBONS, J.P., and BRACKEN, LAWRENCE and KUNZEMAN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to Domestic Relations Law § 244 to obtain a money judgment in the amount of $75,000, plaintiff wife appeals, as limited by her brief, on the ground of inadequacy, from so much of a judgment of the Supreme Court, Queens County (Miller, J.), entered June 12, 1984, as awarded her $59,000. (We treat plaintiff's notice of appeal from an order dated April 17, 1984 as a premature notice of appeal from the judgment.)
Judgment affirmed insofar as appealed from, with costs.
During the divorce action commenced by plaintiff wife against defendant husband, the parties read an oral stipulation of settlement into the record which stated, inter alia, that defendant would pay to plaintiff $75,000. Defendant's counsel qualified this term by stating as follows: "As far as the $75,000, that amount will also come from and include any joint funds of the parties". This statement was assented to without further elaboration. The parties' subsequent divorce judgment did not contain the specific provisions of the stipulation, but it did provide as follows:
"ORDERED, ADJUDGED, ND DECREED that the Stipulation entered into between the parties in open Court on the 4th day of October, 1983, shall survive and shall not be merged in this Judgment, and the Court retains jurisdiction of the matter, concurrently with the Family Court, for the purpose of specifically enforcing such of the provisions of that stipulation as are capable of specific enforcement or to the extent permitted by law, of making such further decree with respect to alimony, support as it finds appropriate under the circumstances existing at the time application for that purpose if made to it, or both" (emphasis supplied).
When defendant failed to remit the $75,000, plaintiff sought, inter alia, entry of a money judgment in that amount by a motion pursuant to Domestic Relations Law § 244. Special Term summarily entered a judgment in plaintiff's favor for $59,000, apparently crediting defendant with some $16,000 in joint funds allegedly held by plaintiff. Plaintiff now seeks either a hearing to determine whether the $16,000 set-off...
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