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

669
CA 13-02042
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.


CYNTHIA M. TALLO, PLAINTIFF-RESPONDENT,

                     V                               MEMORANDUM AND ORDER

LOUIS J. TALLO, DEFENDANT-APPELLANT.


STEPHEN M. LEONARDO, ROCHESTER, MICHAEL STEINBERG, FOR
DEFENDANT-APPELLANT.

OLVER KORTS LLP, PITTSFORD (SALLY A. SMITH OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Elma A.
Bellini, J.), entered April 25, 2013. The order, inter alia, directed
defendant to pay plaintiff the sum of $116,667 as a distributive award.


     It is hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.

     Memorandum: Defendant husband appeals from an order that, inter
alia, directed him to make a $116,667 distributive payment to plaintiff
wife pursuant to the parties= separation agreement, which was incorporated
by reference into their judgment of divorce. Article V of the separation
agreement required defendant to make monthly maintenance payments,
commencing November 1, 2008 and continuing for a period of five years.
 Article V also listed five conditions or events that would terminate
defendant=s maintenance obligation. Article VI of the separation
agreement required defendant to make an annual distributive payment from
his 401(k) plan to plaintiff on the first business day of each calendar
year from 2009 through 2012, provided for a final payment of $116,667
on January 2, 2013, and further provided that those Asums shall be deemed
to be a distributive award.@ Article VI further provided that, A[d]uring
such period(s) of time that said sums are transferred to [plaintiff],
[defendant] shall not have the obligation to pay maintenance to [plaintiff]
pursuant to Article V.@ Unlike Article V, Article VI contained no
conditions or events that would relieve defendant of his obligation to
make those distributive payments.

     After defendant refused to make the final distributive payment,
plaintiff moved by order to show cause for an order compelling defendant
to make the final Article VI payment. We reject defendant=s contention
that Supreme Court erred in ordering him to make that payment. AA
matrimonial settlement is a contract subject to principles of contract
                                    -2-                                 669
                                                                CA 13-02042

interpretation . . . [, and] a court should interpret the contract in
accordance with its plain and ordinary meaning@ (Herzfeld v Herzfeld,
50 AD3d 851, 851 [internal quotation marks omitted]; see generally Kamens
v Utica Mut. Ins. Co., 6 AD3d 1237, 1239, affd 4 NY3d 460). AThe
interpretation of an unambiguous contractual provision is >a function for
the court= @ (Pyramid Brokerage Co. of Buffalo, Inc. v Atlas Auto Glass,
Inc., 39 AD3d 1176, 1177, quoting Teitelbaum Holdings v Gold, 48 NY2d
51, 56). A[T]he proper inquiry in determining whether a contract is
ambiguous is whether the agreement on its face is reasonably susceptible
of more than one interpretation@ (Nancy Rose Stormer, P.C. v County of
Oneida, 66 AD3d 1449, 1450 [internal quotation marks omitted]; see Chimart
Assoc. v Paul, 66 NY2d 570, 573). A[W]hen parties set down their agreement
in a clear, complete document, their writing should as a rule be enforced
according to its terms@ (R/S Assoc. v New York Job Dev. Auth., 98 NY2d
29, 32, rearg denied 98 NY2d 693 [internal quotation marks omitted]; see
Pyramid Brokerage Co. of Buffalo, Inc., 39 AD3d at 1177). Article VI
of the separation agreement expressly and unambiguously required defendant
to transfer $116,667 from his 401(k) to plaintiff on January 2, 2013.
The language of the agreement did not indicate that the payment was optional
or terminable upon certain events. Although defendant urges us to apply
the termination conditions or events contained in Article V to the payments
required by Article VI, we decline to do so on the ground that we Amay
not by construction add . . . terms, nor distort the meaning of those
used and thereby make a new contract for the parties under the guise of
interpreting the writing@ (Vermont Teddy Bear Co. v 538 Madison Realty
Co., 1 NY3d 470, 475; see Camperlino v Bargabos, 96 AD3d 1582, 1583).




Entered:   August 8, 2014                           Frances E. Cafarell
                                                    Clerk of the Court
