Smulevitz v. Smulevitz , 936 N.Y.2d 573 ( 2012 )

The Supreme Court properly granted that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint in this action, in which the plaintiff seeks to reform a stipulation of settlement, entered into by the parties in connection with their divorce action, which did not provide for the equitable distribution of the defendant’s pension plan. The defendant made a prima facie showing of entitlement to judgment as a matter of law and, in opposition, the plaintiff failed to raise a triable issue of fact as to a mutual mistake relating to the value of the pension plan (see Etzion v Etzion, 62 AD3d 646, 652 [2009]; Hannigan v Hannigan, 50 AD3d 957, 957-958 [2008]; Kojovic v Goldman, 35 AD3d 65, 71 [2006]).

The plaintiffs remaining contentions are without merit.

We decline to consider the defendant’s request for an award of an attorney’s fee incurred in connection with this appeal. This request should be addressed in the first instance to the Supreme Court (see Kane v Rudansky, 309 AD2d 785 [2003]; Contractors Cas. & Sur. Co. v 535 Broadhollow Realty, 276 AD2d 738 [2000]). Rivera, J.E, Dickerson, Eng and Roman, JJ., concur.