DREISS v. DREISS (1999)

In an action to recover damages for breach of a stipulation of settlement, the terms of which were incorporated but did not merge into a judgment of divorce entered August 9, 1983, the plaintiff former wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Winick, J.), dated November 20, 1997, as granted that branch of the motion of the defendant former husband which was for summary judgment dismissing her first cause of action to the extent that it sought a distribution of one third of the defendant's Metropolitan Life Insurance Company savings and investment account, and the defendant former husband cross-appeals from stated portions of the same order.

ORDERED that the cross appeal is dismissed for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.8[c], [e] );  and it is further,

ORDERED that the order is affirmed insofar as appealed from;  and it is further,

ORDERED that the defendant is awarded one bill of costs.

 A stipulation is an independent contract which is subject to the principles of contract law (see, McWade v. McWade, 253 A.D.2d 798, 677 N.Y.S.2d 596;  De Gaust v. De Gaust, 237 A.D.2d 862, 655 N.Y.S.2d 670).   A court should not, under the guise of interpretation, make a new contract for the parties (see, McWade v. McWade, supra;  Sklerov v. Sklerov, 231 A.D.2d 622, 647 N.Y.S.2d 532).   On this record, there is no evidence to support the plaintiff's claim that the reference in the stipulation to “certain pension plans” or “net pension benefits” was intended to include the defendant's savings and investment account.   Accordingly, the Supreme Court properly granted partial summary judgment in favor of the defendant.

MEMORANDUM BY THE COURT.