Merrick v. Merrick

181 A.D.2d 503

Opinion

— Order, Supreme Court, New York County (Walter M. Schackman, J.), entered February 4, 1991 which, to the extent appealed from, granted defendant’s motion to resettle a judgment of divorce to incorporate by reference, but not merge, the parties’ separation agreement, unanimously affirmed, without costs.

The intention of the parties that the provisions of the separation agreement be incorporated but not merged into the judgment of divorce is clear from the language of the agreement itself, and the same intention on the part of the Supreme Court is clear from its findings of fact and conclusions of law. Accordingly, defendant’s motion to resettle the judgment of divorce so as to reflect this intention was properly granted (Roll v Roll, 143 AD2d 651). The conclusory conjectural allegations set forth in the opposing affidavit of plaintiff’s counsel were insufficient to rebut "the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties” (Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219). Concur— Murphy, P. J., Rosenberger, Ellerin, Kupferman and Kassal, JJ.