DECISION AND ORDER The following papers were read on this motion, to wit: Defendant’s Notice of Motion, Defendant’s Affidavit and Exhibits, Defendant’s Memorandum of Law, Plaintiff’s Affidavit of [sic] Opposition and Exhibits, and Defendant’s Reply. Oral argument was heard by the court from the parties, on the in-court record, of May 5, 2022. Neither party was represented by counsel at the time of the filing of the aforementioned documents, or at the time of oral argument. The court suggested, prior to oral argument, that the parties would be well served with the benefit of competent legal counsel. The parties were advised that the court would grant each party sufficient time to seek and retain counsel. Both parties declined a grant of time to seek counsel (on the record), and chose to proceed with their arguments, and for the court to decide the fully submitted and argued motion. Facts A Stipulation of Settlement of the equitable distribution issues of the parties’ action for divorce was entered, in open court, before a Special Referee on May 21, 2012. The parties agreed on the record, regarding the issue of pensions, to mutual Qualified Domestic Relations Orders. They simultaneously signed an Oral Adoption Affidavit adopting the agreement and its terms as a valid matrimonial agreement pursuant to Domestic Relations Law §236. The agreement was repeated in the Judgment of Divorce, which was granted on July 9, 2015. Qualified Domestic Relations Orders with respect to the Defendant’s pension from the New York City Fire Department, and a second Qualified Domestic Relations Order with respect to the wife’s pension from the New York City Department of Education were both granted on March 22, 2016. On March 31, 2021, the Board of Trustees of the NYC Fire Pension Fund (NYCFPF) awarded the Defendant an Accident Disability Retirement [3/4's Line of Duty]. Defendant previously moved this court in July 2020 seeking to vacate the Qualified Domestic Relations Order as he was in the process of applying for the Accidental Disability Retirement Benefit. That motion was denied on August 26, 2020, by Justice Barbara I. Panepinto. No motion to reargue, or appeal was made or taken on that decision. This court inherited this matter as part of its inventory on the retirement of Justice Panepinto, and it was added to the court’s calendar when Defendant filed the instant post judgment motion sequence # 037, seeking, certain declarations to wit: [a] that the defendant’s Accidental Disability Retirement Benefit is a Compensatory benefit not subject to equitable distribution, [b] that the plaintiff is not entitled to any portion of the defendant’s Accidental Disability Retirement Benefit, [c] that there were no provisions within the Stipulation of Settlement awarding the plaintiff any portion of defendant’s Accidental Disability Retirement Benefit, [d] that there were no provisions in the Domestic Relations Order awarding the plaintiff any portion of the defendant’s Accidental Disability Retirement Benefit, [e] Ordering the plaintiff to pay to the defendant any amounts received from the NYCFPF, and [f] such other relief as the court deems just and proper. Plaintiff opposes each branch of defendant’s motion. Discussion A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation (see Matter of Meccico v. Meccico, 76 NY2d 822 [1990]; Shanon v. Patterson, 38 AD3d 519 [2d Dept 2007]; Gipp v. Gipp, 37 AD3d 406 [2d Dept 2007]; Rivers v. Rivers, 35 AD3d 426 [2d Dept 2006]). Where such an agreement is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence (see Matter of Meccico v. Meccico, 76 NY2d at 824 [1990]; Sorrentino v. Pearlstein, 55 AD3d 901 [2d Dept 2008]; Colucci v. Colucci, 54 AD3d 710 [2d Dept 2008]; Herzfeld v. Herzfeld, 50 AD3d 851[2d Dept 2008]). An ambiguity exists only where “the agreement on its face is reasonably susceptible to more than one interpretation” (Chimart Assoc v. Paul, 66 NY2d 570 [1986]; see Sorrentino v. Pearlstein, 55 AD3d 901 [2d Dept 2008]; Nappy v. Nappy, 40 AD3d 825 [2d Dept 2007]; Clark v. Clark, 33 AD3d 836 [2d Dept 2006]). Contrary to the Defendant’s contention, the parties’ stipulation of settlement entitles the plaintiff to receive a share of his entire accident disability pension. The stipulation by which the parties agreed that the Plaintiff would receive her “marital coverture portion” of the Defendant’s pension pursuant to a Qualified Domestic Relations Order is clear and unambiguous, and does not on its face reflect an intent to draw a distinction between the portion of the pension which would be considered marital property, and the portion which would be considered separate property, if this matter had been adjudicated pursuant to Domestic Relations Law §236(B)(5)(b) (see Pulaski v. Pulaski, 22 AD3d 820 [2d Dept 2005]). Based upon the express language of the parties’ stipulation, by which they opted out of the operation of case law construing Domestic Relations Law §236(B)(3), the parties provided for an equal division of the Defendant’s pension without reference to whether the pension was disability or normal retirement. Moreover, they agreed to waive any claim, inter alia, as to separate property as part of the stipulation. Furthermore, although a retiree spouse is entitled to treat, as separate property, that portion of an accident disability pension which constitutes compensation for personal injury, (where that issue is adjudicated pursuant to Domestic Relations Law §236(B)(5)(b)) (see Dolan v. Dolan, 78 NY2d 463 [1991]; McNelis v. McNelis, 6 AD3d 673 [2d Dept 2004]; Link v. Link, 304 AD2d 800 [2d Dept 2003]), “[t]he proponent of the claim of separate property is required to demonstrate the portion of the disability pension which is to be considered separate” (Pulaski v. Pulaski, 22 AD3d at 821; see Palazzolo v. Palazzolo, 242 AD2d 688 [2d Dept 1997]; Ferrugiari v. Ferrugiari, 226 AD2d 498 [2d Dept 1996]). Here, the Defendant, a former New York City firefighter, suffered a line-of-duty injury and applied for an accident disability pension after entering the subject stipulation. Although the Defendant acknowledged in the stipulation of settlement that he had been advised of and understood his rights pursuant to the equitable distribution provisions of the Domestic Relations Law, the stipulation of settlement nevertheless provided for a division of his pension without reference to whether the pension was presently based, or prospectively based on accident disability or referable to ordinary service retirement. Moreover, the Qualified Domestic Relations Order authorizing the Plaintiff to receive a share of the Defendant’s entire pension in accordance with the Majauskas formula (see Majauskas v. Majauskas 61 NY2d 481 [1984]) was entered upon the Defendant’s consent. Likewise, the Defendant receives his Majauskas share of the Plaintiff’s pension via Qualified Domestic Relations Order. Conclusion The Defendant was employed in a noble profession, where there were many dangers. Some of those dangers could cause injury shortening one’s career, and thus, the New York City Administrative Code provides for the disability benefit applied for and bestowed upon Defendant. Defendant knew or should have known, that the prospect of injury necessitating a disability pension was a future possibility at the time that he consented to the Qualified Domestic Relations Order under the parties’ Stipulation of Settlement. The Defendant’s contention that this court should, in effect, rewrite the terms of the stipulation and deconstruct the division of assets which the parties provided for unambiguously in their stipulation is without merit (cf Hansen v. Hansen, 237 AD2d 253 [2d Dept 1997]). Under these circumstances, the Defendant’s motion is DENIED in its entirety (see Pulaski v. Pulaski, 22 AD3d at 821; cf Berardi v. Berardi, 54 AD3d 982 [2d Dept 2008]). Decretal Paragraph ORDERED, that Defendant’s post judgment sequence #037 is DENIED in its entirety, and the clerk shall enter judgment accordingly. This shall constitute the Decision and Order of the court. Dated: May 9, 2022
