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Supreme Court, Appellate Division, First Department, New York.

Ruth FLORES, Plaintiff-Respondent, v. Primo FLORES, Defendant-Appellant.

Decided: October 20, 2005

MAZZARELLI, J.P., FRIEDMAN, MARLOW, NARDELLI, JJ. Elliot M. Rudick, New York, for appellant. Lansner & Kubitschek, New York (Barbara J. Schaffer of counsel), for respondent.

Orders, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered November 23, 2004 and January 5, 2005, which, inter alia, declared defendant's retirement benefits with the New York City Police Department, including any amounts payable under the Police Superior Officers Variable Supplement Fund (SOVSF) to the extent to which they accrued during the marriage, to be marital property, and denied defendant's motion for a credit for maintenance payments he made on the parties' condominium in Puerto Rico, unanimously affirmed, without costs.

 The court properly rejected defendant's contention that variable supplement funds are independent of any benefit under the Pension Fund and that plaintiff was not, therefore, entitled to share in them.   Defendant's SOVSF benefits constituted marital property in which plaintiff was entitled to share (see DeLuca v. DeLuca, 97 N.Y.2d 139, 736 N.Y.S.2d 651, 762 N.E.2d 337 [2001] ).   Plaintiff's share of defendant's pension was not limited to a portion of the value of those benefits as of the date on which the action was commenced (see Cuda v. Cuda, 19 A.D.3d 1114, 796 N.Y.S.2d 821 [2005] ).

 The court also properly refused to order plaintiff to reimburse defendant for his post-divorce payment of maintenance expenses for the parties' condominium in Puerto Rico. Defendant failed to cross-move for such relief pursuant to CPLR 2215, and, in any event, failed to substantiate his payments and to establish that plaintiff was unjustly enriched (see Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415, 334 N.Y.S.2d 388, 285 N.E.2d 695 [1972] ).

We have considered defendant's remaining contentions and find them unavailing.