Cappello v. Cappello

286 A.D.2d 360, 729 N.Y.S.2d 175, 2001 N.Y. App. Div. LEXIS 8033

Opinion

—In a matrimonial action in which the parties were divorced by judgment entered July 26, 1999, which incorporated but did not merge the terms of a stipulation of settlement entered on the record in open court on January 26, 1999, the defendant former husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Scancarelli, J.), dated August 15, 2000, as granted the motion of the plaintiff former wife to modify the stipulation of settlement and the judgment of divorce.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the motion is denied.

A stipulation entered into in open court, with the parties and counsel present, is a binding contract (see, Carroll v Carroll, 236 AD2d 353; Blake v Blake, 229 AD2d 509; Bellefleur v Gervais, 201 AD2d 523, 524; Barzin v Barzin, 158 AD2d 769, 770). A court cannot rewrite the agreement if the parties have not assented to such a reformation (see, Tinter v Tinter, 96 AD2d 556, 557; Martino v Martino, 103 AD2d 842; Vranick v Vranick, 41 AD2d 663; Matter of Cuffee v Miller, 243 AD2d 563). Santucci, J. P., Goldstein, Florio and Crane, JJ., concur.