PLAINTIFF SOUGHT ARREARAGES FOR A PORTION OF DEFENDANT’S PENSION UNDER THE TERMS OF THE STIPULATION OF SETTLEMENT WHICH WAS INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE; THE ACTION WAS THEREFORE IN THE NATURE OF A BREACH OF CONTRACT AND WAS LIMITED BY THE SIX-YEAR STATUTE OF LIMITATIONS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the calculation of the arrearages for plaintiff’s potion of defendant’s pension was restricted by the six-year statute of limitations for contact actions. The stipulation of settlement, which is the basis for plaintiff’s right to a portion of the pension, was incorporated, but not merged, into the judgment of divorce such that a breach of the stipulation is a breach of contract:

It is well settled that “[a] stipulation of settlement that is incorporated, but not merged, into the judgment of divorce is a contract subject to the principles of contract construction and interpretation” … , and an action seeking money damages for violation of a separation agreement is subject to the six-year statute of limitations for breach of contract actions … . Contrary to the court’s determination, it is irrelevant that plaintiff sought the arrearages by way of motion rather than by commencement of a plenary action. Although motions to enforce the terms of a stipulation are not subject to the statute of limitations … , in this case plaintiff was seeking arrearages, or money damages, for the amounts that she did not receive because the QDRO was never received by Niagara Mohawk. When a party is seeking arrearages or a money judgment, the statute of limitations applies whether a party commences a plenary action … or, as here, simply moves for that relief … .

Thus, we conclude that plaintiff’s claim is timely only to the extent that she seeks her share of pension payments made within six years prior to her motion filed on July 29, 2019. Mussmacher v Mussmacher, 2021 NY Slip Op 07413, Fourth Dept 12-23-21