Vanier v. Vanier

— Per Curiam. Cross appeals from an order of the Supreme Court at Special Term (White, J.), entered April 15, 1985 in Schenectady County, which granted plaintiff summary judgment on her first cause of action, granted defendant summary judgment dismissing plaintiff’s second cause of action and severed defendant’s counterclaim. In December 1983, plaintiff was granted a judgment of divorce against defendant on the ground of cruel and inhuman treatment. The judgment of divorce incorporated the terms of a separation agreement and an in-court stipulation entered into by the parties. The parties agreed, inter alia, to divide equally their savings and checking accounts, with each party receiving $6,732.50. Defendant was to receive possession of certain silver coins valued at $6,920. Defendant also agreed to be responsible for the reasonable and necessary medical expenses of his children. In June 1984, plaintiff commenced this action alleging, for a first cause of action, that defendant had failed to pay her $1,730 of the money due from the savings and checking accounts, and, for a second cause of action, that defendant had refused to pay $2,055 necessary for his son’s orthodontic expenses. Defendant answered, asserting a general denial, and, in a counterclaim, alleging that plaintiff had failed to [904] deliver certain of the silver coins. Plaintiff moved for summary judgment. Special Term granted plaintiff’s motion for summary judgment on her first cause of action. However, summary judgment was awarded to defendant on plaintiff’s second cause of action and the counterclaim was severed. These cross appeals ensued. Initially, we note that defendant’s general denial was not sufficient, by itself, to prove the existence of a triable issue of fact (see, e.g., New York Higher Educ. Servs. Corp. v Ortiz, 104 AD2d 684, 685). Additionally, we find meritless defendant’s contention that his counterclaim precluded summary judgment on plaintiff’s first cause of action. The mere assertion of a counterclaim does not bar summary judgment on the main claim (see, e.g., Northway Eng. v Highland Retirement Center, 101 AD2d 641, lv denied 63 NY2d 601). Summary judgment may be granted even where the amount of the counterclaim exceeds the main claim (see, Quaker-Empire Constr. Co. v Collins Constr. Co., 69 AD2d 943, 944). If the counterclaim and main claim are inextricably interwoven, partial summary judgment is inappropriate (see, Created Gemstones v Union Carbide Corp., 47 NY2d 250, 254). Here, plaintiff’s main claim asserts that defendant reneged on his contractual obligation to deliver the full amount of cash due her under the separation agreement. Defendant’s counterclaim involves silver coins which plaintiff allegedly failed to deliver under the terms of the same agreement. Although the counterclaim is related to the main claim, the two are not so inextricably interwoven as to make severance improper. Furthermore, defendant has not established merit to the assertion in his counterclaim that plaintiff has possession of the silver coins, which were allegedly buried in the backyard of the marital residence. We reject, however, plaintiff’s contention that the separation agreement and stipulation support her claim that defendant agreed to pay for their son’s orthodontic expenses. Defendant agreed to "be responsible for the reasonable and necessary medical expenses of his children” (emphasis supplied). The term medical expenses can neither be fairly construed to include orthodontic expenses (cf. Matter of Kelleman v Kelleman, 101 AD2d 668; Tomashek v Tomashek, 78 AD2d 936) nor is it sufficiently ambiguous so as to allow for the introduction of parol evidence (see, Slatt v Slatt, 102 AD2d 475, 476-477, affd 64 NY2d 966). Although plaintiff has submitted affidavits from two persons who witnessed the negotiations and attested that defendant agreed to pay for his son’s orthodontic expenses, parol evidence cannot be considered in order to create an [905] ambiguity where none exists on the face of the document (see, Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 379). We feel compelled to note that we have addressed only the issues raised at Special Term and in this court. Our decision should not be construed as a determination that plaintiff has no remedy. Order affirmed, without costs. Main, Mikoll and Harvey, JJ., concur.