OAKES v. OAKES

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

Ervin Lawrence OAKES, respondent, v. Barbara OAKES, appellant.

Decided: March 27, 2007

HOWARD MILLER, J.P., ROBERT A. SPOLZINO, DAVID S. RITTER, and MARK C. DILLON, JJ. Donald S. Mazin, Larchmont, N.Y., for appellant. Marcus, Ollman & Kommer, New Rochelle, N.Y. (Jonathan S. Klein and Robert C. Ollman of counsel), for respondent.

In a matrimonial action in which the parties were divorced by judgment dated January 16, 1987, the defendant appeals from an order of the Supreme Court, Westchester County (Montagnino, R.), dated August 24, 2005, which, inter alia, granted that branch of the plaintiff's motion which was to compel the sale of the former marital residence and directed that the proceeds therefrom be divided equally between the parties, and denied her cross motion, among other things, for an attorney's fee.

ORDERED that the order is affirmed, with costs.

 A stipulation of settlement in a matrimonial action is a contract subject to principles of contract interpretation (see Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258;  Perry v. Perry, 13 A.D.3d 508, 508-09, 787 N.Y.S.2d 105;  Douglas v. Douglas, 7 A.D.3d 481, 482, 776 N.Y.S.2d 90).   Where the stipulation is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence (see Rainbow v. Swisher, supra;  Sieratzki v. Sieratzki, 8 A.D.3d 552, 553-554, 779 N.Y.S.2d 507).   Although partial performance of an oral modification of an agreement may render the modification enforceable (see Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 341, 397 N.Y.S.2d 922, 366 N.E.2d 1279;  Richardson & Lucas v. New York Athletic Club of City of N.Y., 304 A.D.2d 462, 463, 758 N.Y.S.2d 321), the defendant former wife failed to establish that such an oral modification occurred in the instant case.   Therefore, the Supreme Court properly granted the plaintiff former husband's motion to compel the sale of the former marital home pursuant to the parties' stipulation of settlement.

The appellant's remaining contentions are without merit.

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