Stein v. Stein

57 A.D.2d 922, 395 N.Y.S.2d 48, 1977 N.Y. App. Div. LEXIS 12171

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1977
• Status: Published

Opinion

In a matrimonial action, plaintiff appeals (1) from a judgment of the Supreme Court, Nassau County, entered September 18, 1975, which, inter alia, granted her a divorce and failed to award her arrears due under a temporary alimony order and (2) as limited by her brief, from so much of an order of the same court, dated March 4, 1976, as denied her motion to vacate a stipulation of settlement and the said judgment of divorce or, in the alternative, to resettle the judgment. Judgment modified, on the law, by adding thereto a provision directing defendant to pay plaintiff the sum of $16,100 as arrears due under the temporary alimony order dated January 31, 1973. As so modified, judgment affirmed, without costs or disbursements. Appeal from so much of the order as denied the branch of plaintiffs motion which sought to resettle the judgment dismissed (see Katz v Katz, 13 AD2d 529). Order otherwise affirmed, insofar as appealed from, without costs or disbursements. The judgment herein is premised upon a stipulation of settlement, which was made in open court. Plaintiffs motion to vacate that stipulation was properly denied, as she failed to demonstrate good cause, such as .collusion, mistake, accident or the like (see Rado v Rado, 51 AD2d 811). However, the judgment should be modified by adding thereto a provision directing defendant to pay plaintiff $16,100 as arrears in temporary alimony. This provision was an integral part of the stipulation of settlement, as recognized in the recital portion of the judgment entered thereon, and was consented to by the parties in open court. Martuscello, J. P., Latham, Shapiro and O’Connor, JJ., concur.