— In a matrimonial action in which the parties were divorced by judgment dated November 28, 1979, the defendant appeals from an order of the Supreme Court, Kings County (Potoker, J.H.O.), entered October 15, 1986, which, inter alia, ordered that the former marital residence be sold and the proceeds be divided equally between the parties.
Ordered that the order is affirmed, with costs.
We agree with the Hearing Officer’s conclusion that both parties were dilatory in complying with the terms of the stipulation which they entered into at the time of their divorce in 1979, under which the defendant husband had the right to purchase the plaintiff wife’s share in the marital residence. This mutual waiver of rights and obligations distinguishes the instant case from our decision in Marinello v Marinello (125 AD2d 555). The defendant herein has not demonstrated such substantial performance of his obligations as to entitle him to the equitable remedy of specific performance of the stipulation, nor has he shown that such relief will not produce hardship to the plaintiff (see, Castaldi v Multer, 117 AD2d 699; Hadcock Motors v Metzger, 92 AD2d 1).
The arguments of our dissenting colleague do not establish
[342] otherwise. The dissenter argues that the plaintiff is justly burdened with the entire responsibility for the parties’ seven-year delay in seeking execution of the stipulation since the plaintiff obtained, but then declined to disclose, an appraisal of the marital premises in 1979. Further, as construed by the dissent, the plaintiff’s alleged "wrongful” refusal to disclose her appraisal obviates any need to consider dilatory conduct or delays which may have been attributable to the defendant, who, we note, not only maintained exclusive possession of premises since June 1979 but, according to the plaintiff, wrongfully ejected her therefrom. Nevertheless, accepting, as the Judicial Hearing Officer properly determined, that the plaintiff was partially at fault for the delay, it cannot be said on this record that she was exclusively responsible therefor or that the delays which ensued can reasonably be attributed solely to the plaintiff’s decision not to disclose her appraisal.
Indeed, the record reveals that soon after the appraisals were obtained, the parties became embroiled in another intractable dispute with regard to the computation of their respective interests in the premises, which dispute was never resolved, despite the existence of an arbitration clause in the stipulation. This further buttresses the conclusion that there was a mutual waiver of rights under the stipulation. Moreover, it appears that the defendant was not reluctant to permit the status quo to exist — under which he maintained possession of the premises — until he more recently decided to leave the State after his remarriage.
In determining whether to grant the defendant the equitable remedy of specific performance, we note that the equities do not favor the defendant, who has resided in the premises since the inception of the dispute and who would receive, in addition, a windfall, if he were now permitted to purchase the plaintiff’s interest in the premises at a 1979 appraised value. It is notable in this respect that, pursuant to the order appealed from, the parties are to share equally in the proceeds of the premises, which amounts will undoubtedly exceed, for each, 100% of the value of the premises as estimated in the parties’ original appraisals. In short, we conclude that the Supreme Court’s order represents an appropriate exercise of its powers in equity and, accordingly, affirm. Mangano, J. P., Brown and Hooper, JJ., concur.
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