
    Ellen Oxman, Appellant, v John Craig Oxman, Respondent.
    [910 NYS2d 652]
   Order, Supreme Court, New York County (Saralee Evans, J.), entered on or about November 6, 2009, which denied plaintiffs motion for legal fees incurred in filing a postjudgment petition to modify a stipulated settlement, unanimously affirmed, without costs.

In 2007, plaintiff petitioned to modify the stipulated custody provisions of a parenting agreement that had been incorporated in the judgment of divorce. The subject matter of that petition was resolved in an amended parenting agreement in 2009, the final paragraph of which stipulated that “Both Parents agree that the Mother’s attorney may petition the court for the payment of legal fees resulting from this litigation.” A paragraph in the original parenting agreement that survived the amended agreement, under which plaintiff now claims fees and costs, applies not to this type of proceeding — a change in circumstances, warranting a change in child custody — but rather to where one party has breached the agreement. There was not even an allegation of breach here. Even if there had been, recovery of counsel fees would, under the relevant language of the original agreement, be available only if the party seeking relief “substantially prevailed]” in her application, which was not the case here.

We have considered plaintiffs remaining contention and find it unavailing. Concur — Andrias, J.P., Catterson, Moskowitz, Manzanet-Daniels and Román, JJ.  