Cunningham v. Cunningham

169 A.D.2d 451, 564 N.Y.S.2d 154, 1991 N.Y. App. Div. LEXIS 138

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1991
• Status: Published

Opinion

Orders, Supreme Court, New York County (Elliott Wilk, J.), entered November 24, 1989 and January 26, 1990, respectively, which, inter alia, granted defendant’s application to vacate an income execution issued pursuant to CPLR 5241, denied plaintiffs cross motion for maintenance arrears, security for future payments, and counsel fees, and granted defendant’s cross motion for counsel fees on plaintiff’s motion for reargument, unanimously affirmed, with costs.

Whether an emancipation event occurred was an issue properly determinable upon a mistake of fact proceeding (Zuckerman v Zuckerman, 154 AD2d 666). As separation agreements are subject to the same rules of contract construction and interpretation as other agreements (Matter of Baker v Baker, 33 AD2d 812), the court properly considered the plain meaning of the agreement in treating each of the specified "Emancipation Events” as separate and independent (22 NY2d Jur 2d, Contracts, § 188, at 22). Thus, the 18-year-old son’s voluntary termination of his permanent residence with his mother constituted an emancipation event, triggering a reduction in defendant’s maintenance obligation. The court also properly imposed a sanction of counsel fees upon plaintiff for frivolous conduct consisting of outright misrepresentation in respect to the motion for reargument when, on the original motion, plaintiff clearly waived the relief of a proffered hearing and insisted that the court proceed solely upon the papers submitted (Rules of Chief Administrator of Courts, 22 NYCRR 130-1.1). Concur—Sullivan, J. P., Milonas, Rosenberger, Wallach and Smith, JJ.