[*2]Appeal by defendant and cross appeal by plaintiff from a judgment of the District Court, Suffolk County (P. Barton, J.), entered on July 11, 2002, awarding plaintiff the principal sum of $11,400.

Judgment unanimously modified by reversing so much thereof as denied interest on the amount awarded to plaintiff, and matter remanded to the court below for computation of interest in accordance with the provisions of CPLR 5001 and, as so modified, affirmed, without costs.

The plaintiff and defendant obtained a divorce on June 1, 1999. The terms of their stipulation of settlement was incorporated, but not merged, into the judgment of divorce. Shortly after the judgment of divorce was entered, the parties orally agreed to modify the stipulation of settlement. Said oral agreement was reduced to a writing which provided that "I [defendant] agree to pay you [plaintiff] $1900.00 per month for a period of 60 months starting August 1999. These monies are to be used to pay the second mortgage on the house and for our son Nicholas to attend college." The defendant began making payments pursuant to the agreement in September 1999 but he failed to make the payment due in March 2000, or any payments thereafter, because plaintiff refused to give him any documents or proof establishing the extent of their son's education expenses or the outstanding balance on the second mortgage. The plaintiff commenced suit to recover the monthly payments due from March through August, 2000, totalling $11,400. After a bench trial, judgment was awarded in plaintiff's favor in the principal sum of $11,400.

General Obligations Law § 5-1103 provides that an "agreement, promise or [*3]undertaking to change or modify.. . any contract, obligation.. ., shall not be invalid because of the absence of consideration, provided that the agreement, promise or undertaking changing, modifying or discharging such contract, obligation..., shall be in writing and signed by the party against whom it is sought to enforce the change, modification or discharge, or by his agent." Therefore, the agreement, which is signed by the defendant, is not invalid because of a lack of consideration.

Under either party's interpretation of the written modification, we find no basis to deny recovery of payments due for the period being sued for, i.e., March 2000 through August 2000 (see Libeson v Copy Realty Corp., 167 AD2d 376). While the parties disagree as to whether the modification required defendant to continue to make payments after plaintiff paid off the second mortgage in full in November 2000, this issue is not before this court. Thus, there is no basis to disturb the judgment of the court below.

We have reviewed defendant's remaining contentions raised on appeal and find them to be without merit.

Pursuant to CPLR 5001; plaintiff is entitled to pre-verdict interest as of right computed from the date on which plaintiff's cause of action accrued (see State v Williams, 140 AD2d 836).
Decision Date: October 01, 2003
[*4]