Doxtator v. Doxtator , 633 N.Y.S.2d 388 ( 1995 )

—In an action to recover money due pursuant to, inter alia, a so-ordered stipulation of the United States Bankruptcy Court for the Southern District of New York and an income execution order, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Beisner, J.), dated June 29, 1994, which denied her motion for summary judgment and granted summary judgment in favor of the defendants.

Ordered that the order is modified by deleting the provision thereof granting the defendant Robert H. Doxtator summary judgment in his favor and substituting therefor a provision denying summary judgment to Robert H. Doxtator; as so modified, the order is affirmed insofar as appealed from, with costs payable to International Business Machines Corporation.

The plaintiff commenced this action to recover a one-third share of money paid by International Business Machines Corporation (hereinafter IBM) to Robert H. Doxtator, her former husband, on or about July 31, 1992, pursuant to IBM’s Individual Transition Option Program II exit incentive plan.

IBM cannot be held liable pursuant to the so-ordered stipulation of the United States Bankruptcy Court for the Southern District of New York dated January 5, 1988, inasmuch as it was not a party to that agreement. Nor can IBM be held liable pursuant to the terms of the Income Execution Order dated February 19, 1988, inasmuch as it applied only to Doxtator’s "gross weekly or bi-weekly income” and not to a one-time lump sum payment.

We further conclude, however, that the provision in the so-called stipulation pursuant to which Doxtator consented to the entry and service upon his employer of a wage deduction order deducting, inter alia, one-third of his gross income during the period of time from November 9, 1987 to March 1, 1993, raises a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff was entitled to a one-third share of the payment Doxtator received pursuant to the Individual Transition Option Program II exit incentive plan. Balletta, J. P., Pizzuto, Joy and Altman, JJ., concur.