Mayefsky v. Mayefsky ( 1992 )

Mikoll, J.

(dissenting). We respectfully dissent. In our view Supreme Court properly interpreted the disputed contract provision and we would therefore affirm.

A reviewing court "may not, under the guise of interpretation, make a new contract for the parties or change the words of a written contract so as to make it express the real intention of the parties if to do so would contradict the clearly expressed language of the contract * * *. As we [have] noted * * * we 'concern ourselves with what the parties intended, but only to the extent that they evidenced what they intended by what they wrote’ ” (Rodolitz v Neptune Paper Prods., 22 NY2d 383, 386-387, quoting Raleigh Assocs. v Henry, 302 NY 467, 473 [citations omitted]). Here, the parties carefully provided for each transaction and, had they intended a deferred transfer with respect to the disputed provision, they would have spelled it out. Yet, there is no provision that plaintiff would accept a qualified domestic relations order, so necessary to accomplish defendant’s claim. In the stipulation the phrase "all right, title and interest” merely indicates that defendant has the capacity to make the transfer of the specified sum of money. The phrases "which is in his pension” and "which is in his profit sharing account” are identifying words of no more effect than phrases such as "which is in my savings account” or "which is in my checking account”. Significantly, the disputed paragraph further provided that defendant "shall also release and waive all claim to $31,800 which is in First Federal Savings and Loan bank located in Middletown, New York, which is the subject of a court-ordered freeze which will hereby be lifted for the purpose of transferring said assets to [plaintiff]” (emphasis supplied). Clearly, then, if the parties intended that [plaintiff] accept a qualified domestic relations order, they would have so specified as was done with regard to the transfer of the sum of $31,800.

Weiss, P. J., concurs. Ordered that the order is reversed, on the law, with costs, and motion denied.