DECISION ORDER
ORDERED that the appeal from the order dated July 31, 2001, is dismissed, as that order was superseded by the order dated August 29, 2001; and it is further,
ORDERED that the order dated August 29, 2001, is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff's motion which were to enforce the parties' stipulation of settlement to the extent of directing entry of a judgment for arrears in life insurance premiums, and for an award of an attorney's fee; as so modified, the order is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
In 1996 the parties entered into a stipulation of settlement (hereinafter the stipulation) which was incorporated but not merged into the judgment of divorce. The stipulation provided, inter alia, that the defendant would pay the plaintiff maintenance in the sum of $1,000 per week and maintain certain life insurance policies which were listed in the stipulation. The parties disagree as to whether the stipulation also required the defendant to make the mortgage payments on the plaintiff's residence in Florida and whether the stipulation entitled the plaintiff to proceeds from the sale of one of the defendant's business entities, named "Kel Car." The stipulation contained a "no oral-modification" clause.
Subsequently, the plaintiff moved, inter alia, to hold the defendant in contempt for failing to comply with the maintenance, life insurance, and mortgage provisions of the stipulation. The Supreme Court granted the plaintiff's motion to the extent of directing entry of a judgment in her favor and against the defendant for the claimed arrears. The defendant appeals.
Contrary to the defendant's contentions, the Supreme Court properly awarded the plaintiff the claimed arrears in maintenance. The clause in the stipulation expressly prohibiting its modification or waiver except by a properly-signed writing was sufficient to establish prima facie that the plaintiff was entitled to summary judgment (see Gower v. Gower, 240 A.D.2d 632; Jacobson v. Jacobson, 231 A.D.2d 494). The burden therefore shifted to the defendant to show the existence of a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Zuckerman v. City of New York, 49 N.Y.2d 557). The defendant failed to meet that burden by demonstrating that his performance of an alleged oral agreement, modifying the written stipulation, was unequivocally referable to such agreement. Indeed, the record indicates other motivations for the defendant's conduct (see Gower v. Gower, supra; Jacobson v. Jacobson, supra).
Furthermore, the Supreme Court properly determined that the defendant was responsible for making the mortgage payments on the plaintiff's Florida residence. The stipulation of settlement, read as a whole to determine its purpose and intent (see e.g. W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157; Rentways v. O'Neill Milk Cream Co., 308 N.Y. 342), plainly manifests the intention of the parties that the defendant would continue to pay the mortgage on the Florida residence until the marital residence was sold and the proceeds applied to satisfy the mortgage on both that residence and the Florida residence.
However, the Supreme Court should have held a hearing to determine the amount of arrears owed by the defendant with respect to the life insurance premiums. The plaintiff failed to provide sufficient proof to establish, as a matter of law, that she was entitled to the amount claimed.
Furthermore, the Supreme Court erred in awarding the plaintiff an attorney's fee without first conducting a hearing to explore the relative financial conditions of the parties and the attorney's claim for a fee (see Gaudette v. Gaudette, 234 A.D.2d 619; Kelly v. Kelly, 223 A.D.2d 625).
The defendant's remaining contentions either are without merit or unpreserved for appellate review.
SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur.