Opinion
May 3, 1976
In an action in which a judgment of divorce was entered, certain provisions of which were based upon a stipulation between the parties, defendant appeals from an order of the Supreme Court, Westchester County, dated June 23, 1975, which granted plaintiff's motion to resettle that judgment. Order reversed, without costs or disbursements, and case remanded to Special Term for a hearing to determine the intent of the parties in entering into the stipulation. It was improper for Special Term to, in effect, materially alter the settlement reached by the parties on the basis of the court's personal recollection of the settlement negotiations (see Matter of Dolgin Eldert Corp., 31 N.Y.2d 1; Shapiro v Danzig, 267 App. Div. 949; 2 Carmody-Wait 2d, N Y Civ Prac, § 7:14). However, the meaning of both the judgment of divorce and the stipulation of settlement are sufficiently ambiguous to require the taking of oral proof of the surrounding facts and circumstances to determine the true meaning and intention of the parties (see Santini Bros. v Smith, 250 App. Div. 53). Cohalan, Acting P.J., Margett, Damiani, Rabin and Titone, JJ., concur.