Opinion
December 22, 1986
Appeal from the Supreme Court, Queens County (Graci, J.).
Ordered that the order is reversed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent with the judgment of divorce.
By directing that the marital residence be partitioned and sold under RPAPL article 9, Special Term effectively modified the stipulation settling the action and the judgment entered upon it, which provided that the wife would purchase the husband's interest in the residence at a price to be established by appraisal. Neither party had requested such a modification, however, and in the absence of one of the "traditional" grounds for vacatur, e.g., fraud, duress, mistake or overreaching, none of which has been established or even alleged here, Special Term was powerless to effect it (see, De Jose v. De Jose, 104 A.D.2d 629, affd 66 N.Y.2d 804). It was error therefore to direct that the property be partitioned and sold. Mangano, J.P., Bracken, Niehoff and Spatt, JJ., concur.