Avelluto v. Avelluto

Order, Supreme Court, New York County (Laura Visitacion-Lewis, J.), entered March 7, 2003, which, inter alia, awarded plaintiff temporary maintenance, unanimously affirmed, without costs. Defendant premises his opposition to the award of temporary maintenance upon a waiver of maintenance provision contained in a stipulation entered into in 1993 in a prior matrimonial action commenced by plaintiff in 1991. However, the parties in executing the stipulation contemplated that a divorce judgment would be entered in the action, but the proposed judgment was never timely submitted and because good cause was not shown for this omission, the action was properly dismissed as aban 298 doned (see Funk v Barry, 89 NY2d 364 [1996]; cf. Russo v Russo, 289 AD2d 467 [2001]). The 1993 stipulation did not survive the abandonment of the action in which it was made (see Meilak v Meilak, 108 AD2d 975 [1985], lv dismissed 65 NY2d 922 [1985]; cf. Siddiqui v Siddiqui, 118 AD2d 846 [1986]) and is thus of no avail to defendant. Concur—Buckley, P.J., Nardelli, Saxe and Marlow, JJ.