Barbara T. Missett, Appellant, v. Joseph V. Missett, Respondent

Barbara T. Missett, Appellant, v Joseph V. Missett, Respondent. [596 NYS2d 676] [MAJORITY] —Order and judgment of the Supreme Court, New York County (Jacqueline Silbermann, J.), entered on or about January 6, 1992, and February 26, 1992, respectively, which, inter alia, granted defendant’s cross-motion for summary judgment dismissing the complaint, unanimously affirmed, with costs. While in 1986 we held that summary judgment was premature in this case since, inter alia, no relevant disclosure had taken place (125 AD2d 275), we now find that, after completion of discovery, summary judgment is appropriate. It is clear from all the evidence that the parties’ separation agreement did not intend that defendant’s capital gains distributions, such as the one at issue, be included within the term "earned income” to which plaintiff would be entitled to a percentage thereof. Indeed, while the instant distribution is from a partnership of which defendant is a member, defendant did not "provide services” to that partnership, so that such distribution could not constitute "earned income” within the meaning of the terms of the separation agreement. We have considered all other claims and find them to be of no merit. Concur — Sullivan, J. P., Wallach, Kupferman and Rubin, JJ.