Opinion
January 6, 2000
Order, Supreme Court, New York County (Marylin Diamond, J.), entered July 14, 1999, which, to the extent appealed from, denied defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Peter J. Galasso, for plaintiff-respondent.
Kent A. Yalowitz, for defendant-appellant.
LERNER, J.P., SAXE, BUCKLEY, FRIEDMAN, JJ.
Plaintiff wife commenced this post-divorce action for $131,977.44 in "alimony" allegedly due her pursuant to the parties' separation agreement. Defendant counterclaimed, inter alia, to recoup purported overpayments to plaintiff of over $500,000. Whether defendant's income and consequent alimony obligation were, pursuant to the separation agreement, to be reduced by loss carry-overs cannot be determined from the separation agreement itself. The existence of numerous possible interpretations of those portions of the agreement bearing on the extent to which defendant's losses could be applied to reduce his income in connection with the computation of alimony precludes the summary relief requested by defendant. To the extent defendant sought dismissal of the complaint based upon circumstances which he contends amounted to a waiver by plaintiff of any claim for unpaid alimony, there is insufficient evidence upon the record to conclude, as a matter of law, that plaintiff did, in fact, voluntarily and intentionally relinquish a known right (see,Haberman v. Haberman, 216 A.D.2d 525).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.