SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

354 

CA 16-01626 

PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ. 

 

JOSEPH W. ROCHE, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

KATHLEEN LORENZO-ROCHE, DEFENDANT-RESPONDENT.

 

BRENON LIPMAN & ZARCONE, LLP, WILLIAMSVILLE (KELLY V. ZARCONE OF

COUNSEL), FOR PLAINTIFF-APPELLANT. 

SPADAFORA & VERRASTRO, LLP, BUFFALO (KATIE M. POLEON OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Timothy

J. Drury, J.), entered May 25, 2016. The order, among other things,

granted defendant’s motion and adjudged that defendant is entitled to

the entry of a Domestic Relations Order awarding her the right to

receive $833 per month from plaintiff’s New York State Teachers

Retirement System pension benefit commencing as of the date of his

retirement. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying the motion and as modified

the order is affirmed without costs, and the matter is remitted to

Supreme Court, Erie County, for further proceedings in accordance with

the following memorandum: In this postdivorce dispute, plaintiff

husband appeals from an order granting the motion of defendant wife,

by which she sought a Domestic Relations Order (DRO) entitling her to

receive $833 from plaintiff’s monthly pension benefit retroactive to

the date of his retirement, and awarding her $750 in counsel fees. 

The order also denied plaintiff’s cross motion, in which plaintiff

sought a DRO precluding defendant from receiving any share of the

pension until plaintiff had attained the age of 67, and also sought an

award of counsel fees. 

We conclude that Supreme Court erred in granting the motion, and

we modify the order accordingly. It is well established that a

separation agreement that is incorporated but not merged into a

judgment of divorce “is a contract subject to the principles of

contract construction and interpretation” (Matter of Meccico v

Meccico, 76 NY2d 822, 823-824, rearg denied 76 NY2d 889; see Anderson

v Anderson, 120 AD3d 1559, 1560, lv denied 24 NY3d 913). Where such

an agreement is clear and unambiguous on its face, the intent of the

parties must be gleaned from the four corners of the instrument and

not from extrinsic evidence (see Meccico, 76 NY2d at 824; see also
-2- 354 

CA 16-01626 

W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162), and the agreement in

that instance “ ‘must be enforced according to the plain meaning of

its terms’ ” (Anderson, 120 AD3d at 1560, quoting Greenfield v Philles

Records, 98 NY2d 562, 569). Where an agreement is ambiguous, however,

the parties may submit to the court extrinsic evidence in support of

their respective interpretations (see Colella v Colella, 129 AD3d

1650, 1651; see also St. Mary v Paul Smith’s Coll. of Arts & Sciences,

247 AD2d 859, 860). Whether an agreement is ambiguous is a question

of law for the court to resolve (see Kass v Kass, 91 NY2d 554, 566;

W.W.W. Assoc., 77 NY2d at 162). In making that determination, the

proper inquiry is “whether the agreement on its face is reasonably

susceptible of more than one interpretation” (Chimart Assoc. v Paul,

66 NY2d 570, 573). Moreover, in deciding whether an agreement is

ambiguous, the court “ ‘should examine the entire contract and

consider the relation of the parties and the circumstances under which

it was executed’ ” (Kass, 91 NY2d at 566).

We conclude that the pertinent provision of the parties’

modification agreement is ambiguous inasmuch as it is reasonably

susceptible of more than one interpretation (see Colella, 129 AD3d at

1651; Walker v Walker, 42 AD3d 928, 928-929, lv dismissed 9 NY3d 947;

see also St. Mary, 247 AD2d at 859). We conclude that a hearing is

required to enable the court to determine the intent of the parties

with respect to the date on which defendant was or is to begin

receiving her share of plaintiff’s pension, and we remit the matter to

Supreme Court for such a hearing (see Colella, 129 AD3d at 1651;

Walker, 42 AD3d at 929; Gentile v Gentile, 31 AD3d 1158, 1159). 

Entered: April 28, 2017 Frances E. Cafarell

Clerk of the Court