Weissmanv.Weissman

Appellate Division of the Supreme Court of New York, First DepartmentDec 31, 2002
300 A.D.2d 261 (N.Y. App. Div. 2002)
300 A.D.2d 261751 N.Y.S.2d 366

2701

December 31, 2002.

Appeal from Qualified Domestic Relations Order (QDRO), Supreme Court, New York County (Judith Gische, J.), entered February 22, 2002, issued in connection with a judgment of divorce entered April 11, 1985 and entered pursuant to the parties' so-ordered stipulation dated January 31, 2002, unanimously dismissed, without costs. Order, same court and Justice, entered April 3, 2002, which denied plaintiff's motion to vacate the QDRO and stipulation, unanimously affirmed, without costs.

Leonard G. Florescue, for Plaintiff-Appellant.

Patricia Ann Fersch, for Defendant-Respondent.

Before: SAXE, J.P., SULLIVAN, ELLERIN, LERNER, GONZALEZ, JJ.


The appeal from the QDRO must be dismissed since a QDRO is not appealable as of right, and we decline to grant leave to appeal where plaintiff signed a stipulation withdrawing his opposition to the QDRO's entry without indicating that he would be seeking such leave (see Gormley v. Gormley, 238 A.D.2d 545; Lewis v. Lewis, 269 A.D.2d 429). Nor is there basis for vacating or modifying the QDRO where the record shows that plaintiff was at all relevant times represented by counsel, present in court for the argument of his opposition to plaintiff's proposed QDRO, and, in open court, read and signed the stipulation agreeing to the entry of that QDRO. Plaintiff's mistaken belief that the stipulation was preserving his right to appeal the QDRO does not overcome "`the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties'" (Friedman v. Friedman, 247 A.D.2d 430, 431;cf. Knickerbocker Props. v. Razy, 202 A.D.2d 374). Plaintiff should have known what he was signing (see Lewis, 269 A.D.2d 429 at 430; Twiss v. Twiss, 245 A.D.2d 502), and if he did not, he, not defendant, should suffer the consequences (see Rivera v. State of New York, 115 A.D.2d 431, 432-433, citing Hallock v. State of New York, 64 N.Y.2d 224, 330).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.