Mendler v. Mendler

158 A.D.2d 276, 550 N.Y.S.2d 678, 1990 N.Y. App. Div. LEXIS 900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1990
• Status: Published

Opinion

While the parties entered into a separation agreement which related, inter alia, to the real property herein, the divorce judgment provided, among other things, "that the Stipulation entered into, between the parties * * * shall survive and shall not be merged in this Judgment”.

Since there was no provision in the divorce judgment incorporating by reference the separation agreement, there is no basis, short of an action by plaintiff on the agreement itself, upon which judgment relating to the terms of the agreement can be entered (see, Baker v Baker, 66 NY2d 649, 651; Baratta v Baratta, 122 AD2d 3). While the judgment did provide that "the court retains jurisdiction of the matter for the purpose of specifically enforcing each of the provisions of that Stipulation as are capable of specific enforcement”, similar language was held to provide no power for the court to act in the absence of any " 'mandate by the court that the agreement or stipulation be carried out by the parties’ ” (Baker v Baker, supra, at 651). Consequently, plaintiff must institute a plenary action to obtain the relief she seeks. Concur—Kupferman, J. P., Asch, Milonas, Wallach and Rubin, JJ.