        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

264
CA 12-01303
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


INEZ BIELECKI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

RICHARD BIELECKI, DEFENDANT-APPELLANT.


BENNETT, DIFILIPPO & KURTZHALTS, LLP, EAST AURORA (DAVID S. WHITTEMORE
OF COUNSEL), FOR DEFENDANT-APPELLANT.

HOLLY BAUM, BUFFALO (JAMES P. RENDA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Wyoming County
(Michael F. Griffith, A.J.), entered October 5, 2011. The order
granted the motion of plaintiff for a money judgment against
defendant.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying plaintiff’s motion in part
and directing that defendant pay plaintiff her share of any pension
payment defendant received on or after October 21, 2004, and as
modified the order is affirmed without costs.

      Memorandum: In this post-matrimonial proceeding, defendant
appeals from an order that granted plaintiff’s motion seeking a money
judgment for sums allegedly due to plaintiff as her share of
defendant’s pension benefits. The judgment of divorce, entered in
1985, provided that plaintiff was entitled to her Majauskas share of
defendant’s pension “when said defendant starts to obtain his
pension.” Defendant began receiving pension benefits in March 1991.
Plaintiff, however, was unaware that defendant was receiving such
benefits and she did not begin to receive her share until October
2005, when she obtained a qualified domestic relations order (QDRO).
By notice of motion filed October 21, 2010, plaintiff sought her share
of pension benefits received by defendant from the date of his
retirement in March 1991 until October 2005, when plaintiff began
prospectively receiving her share of such benefits pursuant to the
QDRO.

     Supreme Court erred in granting plaintiff’s motion in its
entirety. Plaintiff’s claim with respect to defendant’s pension
benefits is subject to the six-year statute of limitations set forth
in CPLR 213 (1) (see Tauber v Lebow, 65 NY2d 596, 598; Patricia A.M. v
Eugene W.M., 24 Misc 3d 1012, 1015; see also Woronoff v Woronoff, 70
                                 -2-                           264
                                                         CA 12-01303

AD3d 933, 934, lv denied 14 NY3d 713). The statute began to run when
defendant began receiving his pension in March 1991 (see Duhamel v
Duhamel, 188 Misc 2d 754, 756, affd 4 AD3d 739; Patricia A.M., 24 Misc
3d at 1015; see also Bayen v Bayen, 81 AD3d 865, 866). Because
defendant’s obligation to pay plaintiff her share of the pension was
ongoing, the statute began to run anew with each missed payment (see
Patricia A.M., 24 Misc 3d at 1015-1016; see generally Medalie v
Jacobson, 120 AD2d 652). Thus, plaintiff’s claim is timely to the
extent that it seeks payments missed within six years prior to her
motion filed on October 21, 2010. To the extent that plaintiff sought
her share of pension payments made more than six years prior to
October 21, 2010, however, plaintiff’s claim is untimely. We
therefore modify the order accordingly. Finally, we reject
plaintiff’s contention that defendant is equitably estopped from
raising the statute of limitations as a defense inasmuch as defendant
made no affirmative misrepresentation to her, and his silence or
failure to disclose the date on which he began receiving his pension
benefits is insufficient to invoke the doctrine of equitable estoppel
(see generally Doe v Holy See [State of Vatican City], 17 AD3d 793,
795, lv denied 6 NY3d 707).




Entered:   May 3, 2013                         Frances E. Cafarell
                                               Clerk of the Court
