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

1448
CA 11-00838
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


ROBERT PETHICK, PLAINTIFF-APPELLANT,

                      V                           MEMORANDUM AND ORDER

ELIZABETH PETHICK, NOW KNOWN AS ELIZABETH
CACCAMISE, DEFENDANT-RESPONDENT.


DAN M. WALTERS, PITTSFORD, FOR PLAINTIFF-APPELLANT.

MAUREEN A. PINEAU, ROCHESTER, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Richard
A. Dollinger, A.J.), entered July 6, 2010. The order, insofar as
appealed from, determined that the parties’ separation agreement is
not an enforceable agreement with respect to college expenses.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs.

     Memorandum: Plaintiff’s sole contention on appeal is that the
parties’ separation agreement, which was incorporated into the
judgment of divorce, created a binding obligation on defendant to
contribute to the college expenses of the parties’ child and thus that
Supreme Court erred in refusing to direct defendant to reimburse him
for the college expenses that he incurred before he filed his motion
seeking, inter alia, that relief. Plaintiff’s contention is not
properly before us, however, inasmuch as the Support Magistrate
determined, after a hearing, that the college education provision of
the separation agreement was unenforceable, and plaintiff failed to
appeal from that order (see Matter of Hammill v Mayer, 66 AD3d 1196,
1197-1198; Matter of Clark v Clark, 61 AD3d 1274, lv denied 13 NY3d
702; Matter of Regan v Zalucky, 56 AD3d 825, 826-827). We therefore
dismiss the appeal (see generally Abasciano v Dandrea, 83 AD3d 1542,
1542-1543).




Entered:    December 30, 2011                   Frances E. Cafarell
                                                Clerk of the Court
