Appeal from an order of the Supreme Court, Erie County (John F. O’Donnell, J.), entered January 31, 2011. The order directed plaintiff to pay certain tax liabilities.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff’s sole contention on appeal is that Supreme Court erred in concluding that the terms of the parties’ separation agreement, which was incorporated but not merged into the judgment of divorce, rendered him responsible for the tax liability of defendant arising from defendant’s status as a shareholder of PMC Gage, Inc. (PMC), a subchapter S corporation. Pursuant to the separation agreement, defendant’s shares in PMC were transferred to plaintiff in approximately June 2006. The separation agreement also provided that, in exchange for the transfer of defendant’s interest in PMC to him, plaintiff would “indemnify and hold [defendant] harmless from any claim or liability associated with or arising out of PMC.”
According to defendant, the transfer of her shares in PMC caused her to incur federal and state income tax liability in the amount of $227,915. By order to show cause, defendant sought, inter alia, to enforce that part of the separation agreement requiring plaintiff to indemnify defendant for any claim or liability associated with or arising out of PMC. The court granted
All concur except Centra, J.E, and Garni, J., who dissent and vote to modify in accordance with the following memorandum.