Howard v. Howard

134 A.D.2d 571, 521 N.Y.S.2d 471, 1987 N.Y. App. Div. LEXIS 50780

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1987
• Status: Published

Opinion

In an action for rescission of a separation agreement, the defendant appeals from an order of the Supreme Court, Westchester County (Ruskin, J.), dated May 13, 1987, which denied his motion for summary judgment dismissing the complaint and granting him a conversion divorce on his counterclaim.

Ordered that the order is affirmed, with costs.

Upon a review of the record, we find issues of fact which warrant a trial on the validity of the parties’ separation agreement.

Although we recognize that a conversion divorce may be granted even if enforcement of the financial provisions of the agreement is denied (see, Christian v Christian, 42 NY2d 63; Schisler v Schisler, 106 AD2d 441; Russell v Russell, 90 AD2d 516; Picotte v Picotte, 82 AD2d 983), we decline to do so. The plaintiff has alleged that the agreement was void on the basis of fraud, duress and incapacity, which, if found to be true at the trial, would preclude the entry of summary judgment awarding the conversion divorce pursuant to Domestic Relations Law § 170 (6) (Angeloff v Angeloff, 56 NY2d 982; Weinstock v Weinstock, 122 AD2d 790; Davidoff v Davidoff, 93 AD2d 805). Mollen, P. J., Rubin, Hooper and Sullivan, JJ., concur.