GOWER v. GOWER (1997)

In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (Kutner, J.), dated June 14, 1996, which granted the plaintiff's motion, inter alia, for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced the instant action to recover money that the defendant allegedly failed to pay pursuant to a 1968 separation agreement.   The defendant alleged that the payments made by him complied with the terms of a subsequent oral modification whereby the defendant was to pay her $75 each month if she agreed not to seek any money under the 1968 separation agreement.   The Supreme Court granted the plaintiff's motion, inter alia, for summary judgment on the issue of liability.

The clause in the separation agreement expressly prohibiting its modification or waiver except by a properly signed writing was sufficient to make a prima facie showing that the plaintiff was entitled to summary judgment on the issue of liability (see, Jacobson v Jacobson, A.D.2d [2d Dept., Sept. 9, 1996] ).   The defendant's payments to the plaintiff were not unequivocally referable to the alleged oral agreement so as to waive the prohibition against oral modification, since those payments did not conform to the terms of the alleged oral agreement (see, Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 397 N.Y.S.2d 922, 366 N.E.2d 1279;  Can-Am Dev. Corp. v. Meldor Dev. Corp., 214 A.D.2d 695, 625 N.Y.S.2d 600;  Weissman v. Weissman, 173 A.D.2d 609, 570 N.Y.S.2d 189).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.