
    Ralph J. Fasano, Appellant, v Theresa L. Fasano, Respondent.
    [841 NYS2d 470]
   In a matrimonial action in which the parties were divorced by judgment dated February 17, 1994, the plaintiff appeals from an order of the Supreme Court, Nassau County (Gartenstein, J.H.O.), dated February 8, 2006, which, inter alia, in effect, granted that branch of the defendant’s motion which was for an award of child support arrears in the principal sum of $98,379.05, consisting of the sum of $27,166.62 in child support arrears accrued through July 1, 2005, under the judgment of divorce and the parties’ separation agreement dated October 21, 1993, except for the provision in the separation agreement pertaining to cost of living adjustments, the additional sum of $68,387.43 in child support arrears accrued through July 1, 2005, based on the provision in the parties’ separation agreement pertaining to cost of living adjustments, and the sum of $2,825 for arrears in orthodontia expenses for the parties’ child, and directed that he pay the defendant the sum of $4,419.40 per month in child support commencing August 1, 2005, subject to future cost of living adjustments, in accordance with the provision in the separation agreement pertaining to cost of living adjustments.

Ordered that the order is modified, on the law, (1) by deleting the provision thereof, in effect, granting that branch of the defendant’s motion which was for an award of child support arrears in the principal sum of $98,379.05, consisting of the sum of $27,166.62 in child support arrears accrued through July 1, 2005, under the judgment of divorce and the parties’ separation agreement dated October 21, 1993, except for the provision in the separation agreement pertaining to cost of living adjustments, the additional sum of $68,387.43 in child support arrears accrued through July 1, 2005, based on the provision in the parties’ separation agreement pertaining to cost of living adjustments, and the sum of $2,825 for arrears in orthodontia expenses for the parties’ child, and substituting therefor a provision granting that branch of the defendant’s motion which was for an award of child support arrears to the extent of awarding her the principal sum of $29,991.62, consisting of the sum of $27,166.62 in child support arrears accrued through July 1, 2005, under the judgment of divorce and the separation agreement, except for the provision in the separation agreement pertaining to cost of living adjustments, and the sum of $2,825 for arrears in orthodontia expenses for the parties’ child, and (2) by deleting the provision thereof directing that the plaintiff pay the defendant the sum of $4,419.40 per month in child support commencing August 1, 2005, subject to future cost of living adjustments, in accordance with the provision in the separation agreement pertaining to cost of living adjustments; as so modified, the order is affirmed, with costs to the plaintiff.

In view of our determination in Fasano v Fasano (43 AD3d 988 [2007] [decided herewith]), that the cost of living provision wdth respect to child support, as contained in the parties’ separation agreement dated October 21,1993, is invalid and unenforceable for failure to comply with Domestic Relations Law § 240 (1-b) (h), we modify the order herein accordingly. Schmidt, J.E, Santucci, Krausman and McCarthy, JJ., concur.  