         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1527
CA 10-00368
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


BERNARD DIPIZIO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DOROTHY DIPIZIO, DEFENDANT-APPELLANT.


HOGAN WILLIG, AMHERST (GEFFREY GISMONDI OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Erie County (Janice M. Rosa, J.), entered December 17,
2009. The judgment granted in part the amended complaint to enforce
the parties’ postnuptial agreement.

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

     Memorandum: As limited by her brief, defendant appeals from a
judgment granting in part the relief requested in the amended
complaint insofar as that judgment brings up for review a prior order
entered in December 2008. That order, inter alia, denied defendant’s
motion to dismiss the amended complaint seeking to enforce the terms
of the parties’ postnuptial agreement. The contention of defendant
that the postnuptial agreement is unenforceable because her signature
was not acknowledged as required by Domestic Relations Law § 236 (b)
(3) was raised for the first time in her reply papers and thus was not
properly before Supreme Court (see Schissler v Athens Assoc., 19 AD3d
979; Hoyte v Epstein, 12 AD3d 487, 488). Indeed, the court did not
address that contention in its December 2008 order. To the extent
that defendant further contends that the court erred in denying the
motion because the postnuptial agreement was obtained as a result of
plaintiff’s misrepresentations concerning its contents and because
plaintiff failed to comply with the terms of that agreement, we
conclude that defendant failed to submit any evidence to support that
contention. Rather, defendant merely relied on conclusory allegations
in support of the motion, which plaintiff disputed (see generally
Dominski v Frank Williams & Son, LLC, 46 AD3d 1443).

     The contention of defendant that her motion should have been
granted because the Judicial Hearing Officer (JHO) erred in
incorporating the terms of the postnuptial agreement into a September
                                 -2-                          1527
                                                         CA 10-00368

2002 order discontinuing and dismissing defendant’s divorce action is
raised for the first time on appeal and thus is not properly before us
(see Ciesinski v Town of Aurora, 202 AD2d 984, 985). In any event,
that contention is without merit. We conclude that the JHO did not
abuse his discretion in discontinuing the action upon the consent of
both parties or incorporating the terms of the postnuptial agreement
into the September 2002 order inasmuch as the incorporation of those
terms was a condition of discontinuance that the JHO “deem[ed] proper”
and, indeed, that the parties requested (CPLR 3217 [b]).




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
