Missett v. Missett

Appellate Division of the Supreme Court of New York

Missett v. Missett

191 A.D.2d 349, 596 N.Y.S.2d 676

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 23, 1993

StatusPublished

This text of 191 A.D.2d 349 (Missett v. Missett) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Missett v. Missett, 191 A.D.2d 349, 596 N.Y.S.2d 676 (N.Y. Ct. App. 1993).

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Opinion

—Order and judgment of the Supreme Court, New York County (Jacqueline Silbermann, J.), entered on or about January 6, 1992, and February 26, 1992, respectively, which, inter alia, granted defendant’s cross-motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

While in 1986 we held that summary judgment was premature in this case since, inter alia, no relevant disclosure had taken place (125 AD2d 275), we now find that, after completion of discovery, summary judgment is appropriate. It is clear from all the evidence that the parties’ separation agreement did not intend that defendant’s capital gains distributions, such as the one at issue, be included within the term "earned income” to which plaintiff would be entitled to a percentage thereof. Indeed, while the instant distribution is from a partnership of which defendant is a member, defendant did not "provide services” to that partnership, so that such distribution could not constitute "earned income” within the meaning of the terms of the separation agreement.

We have considered all other claims and find them to be of no merit. Concur — Sullivan, J. P., Wallach, Kupferman and Rubin, JJ.

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—Order and judgment of the Supreme Court, New York County (Jacqueline Silbermann, J.), entered on or about January 6, 1992, and February 26, 1992, respectively, which, inter alia, granted defendant’s cross-motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

While in 1986 we held that summary judgment was premature in this case since, inter alia, no relevant disclosure had taken place (125 AD2d 275), we now find that, after completion of discovery, summary judgment is appropriate. It is clear from all the evidence that the parties’ separation agreement did not intend that defendant’s capital gains distributions, such as the one at issue, be included within the term "earned income” to which plaintiff would be entitled to a percentage thereof. Indeed, while the instant distribution is from a partnership of which defendant is a member, defendant did not "provide services” to that partnership, so that such distribution could not constitute "earned income” within the meaning of the terms of the separation agreement.

We have considered all other claims and find them to be of no merit. Concur — Sullivan, J. P., Wallach, Kupferman and Rubin, JJ.

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Bluebook (online)

191 A.D.2d 349, 596 N.Y.S.2d 676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/missett-v-missett-nyappdiv-1993.

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