Peter Brock, Appellant, v. Gale Sitomer et al., Respondents

Peter Brock, Appellant, v Gale Sitomer et al., Respondents. [622 NYS2d 271] [MAJORITY] —Order, Supreme Court, New York County (Ira Gammerman, J.), entered July 11, 1994 which, inter alia, denied that portion of plaintiffs motion for attorneys’ fees, unanimously reversed to the extent appealed from, on the law, to the extent of granting that portion of plaintiffs motion for summary judgment on the fifth cause of action alleged in the complaint for attorneys’ fees, and otherwise affirmed, and the matter is remanded for a determination of the amount of fees payable, without costs. Plaintiff was the "substantially successful party” and defendants’ argument that this action does not arise under the Separation Agreement is without merit. The complaint clearly seeks a declaration of plaintiffs rights under the child support provisions of the amended Separation Agreement, which was incorporated but not merged into the parties’ divorce decree, and the August 20, 1993 agreement was executed in anticipation of the settlement of defendant Sitomer’s claims thereunder. Accordingly, the parties are bound by the plain language of the amended Separation Agreement, which provides for the payment of attorneys’ fees to the substantially successful party (see, Haskin v Mendler, 184 AD2d 372, 373; Canick v Canick, 122 AD2d 767, 769). Concur—Sullivan, J. P., Wallach, Rubin, Ross and Tom, JJ.