Clark v. Clark , 683 N.Y.S.2d 255 ( 1999 )

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered January 26, 1998, which, in an action for divorce, insofar as appealed from, awarded plaintiff certain items of personal property, unanimously affirmed, without costs.

The IAS Court properly awarded plaintiff the highboy, the china, the flatware, the bed, the bird painting, the brass chandelier, and the chaise lounge bequeathed to defendant by his mother upon her death during the parties’ marriage. Although the subject items were defendant’s separate property at the time of the bequest (Domestic Relations Law § 236 [B] [1] [d] [1]), they were converted into marital property when, as established by unrebutted hearing testimony, defendant left it to plaintiff to choose which of the personal property in his mother’s home, if any, would end up in the marital home, and had plaintiff not chosen the items in dispute, they would have been disposed of through gifts to others or at auction (see, Brown v Brown, 148 AD2d 377, 381-382; Ullah v Ullah, 161 AD2d 699, 700, lv denied 76 NY2d 704). We have considered defendant’s other arguments, including that the award of the chaise lounge and chairs violated the parties’ October 17, 1995 stipulation of settlement, and find them to be unpersuasive. Concur — Ellerin, J. P., Wallach, Mazzarelli and Andrias, JJ.