Marinello v. Marinello , 509 N.Y.S.2d 630 ( 1986 )

— In a matrimonial action in which the parties were divorced by judgment dated October 17, 1983, the defendant appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Queens County (Graci, J.), dated March 12, 1986, as directed that the marital residence be partitioned and sold pursuant to RPAPL article 9.

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 AD2d 629, affd 66 NY2d 804). It was error therefore to direct that the property be partitioned and sold. Mangano, J. P., Bracken, Niehoff and Spatt, JJ., concur.