DECISION ORDER
ORDERED that on the court's own motion, the appellant's notice of appeal from the Qualified Domestic Relations Order is treated as an application for leave to appeal, and leave to appeal is granted ( see CPLR 5701[c]); and it is further,
ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the Qualified Domestic Relations Order is modified, on the law, by deleting from the third decretal paragraph thereof the words "from December 31, 1994, until the benefits are distributed to Alternate Payee"; as so modified, the Qualified Domestic Relations Order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court providently exercised its discretion in awarding the plaintiff 10% of the defendant's enhanced earning capacity ( see Farrell v. Cleary-Farrell, 306 A.D.2d 597; Vora v. Vora, 268 A.D.2d 470).
The Qualified Domestic Relations Order (hereinafter the QDRO) executed by the Supreme Court is inconsistent with the amended decision and the judgment upon which the QDRO was based. Both the amended decision and the judgment specifically provided that the defendant was entitled to 50% of that portion of the value of the plaintiff's 401(K) plan earned between April 26, 1980, and December 31, 1994. However, the QDRO provided that the defendant's portion of the 401(K) plan was to be adjusted for earnings from December 31, 1994, until the date the benefits were distributed to the defendant. Therefore, as the QDRO conflicts with the amended decision and the judgment upon which it was based, the amended decision and the judgment control, and the QDRO must be modified accordingly ( see Pauk v. Pauk, 232 A.D.2d 386; Di Prospero v. Ford Motor Co., 105 A.D.2d 479; see also Siegel, N.Y. Prac § 250, at 404[3d ed]).
The plaintiff's remaining contention is without merit.
SANTUCCI, J.P., McGINITY, SCHMIDT and ADAMS, JJ., concur.