Reiter v. Reiter

39 A.D.3d 616, 835 N.Y.S.2d 240

Opinion

In a matrimonial action in which the parties were divorced by judgment dated June 28, 2004, the plaintiff appeals from an order of the Supreme Court, Nassau County (Balkin, J.), dated September 30, 2005, which denied her motion, inter alia, in effect, to modify certain provisions of the parties’ stipulation of settlement dated November 19, 2003, which was incorporated but not merged into the judgment of divorce.

Ordered that the order is affirmed, without costs or disbursements.

“A separation agreement is a contract; as such it cannot be annulled by motion” (Darragh v Darragh, 163 AD2d 648, 649 [1990]). Thus, a challenge to a stipulation of settlement, which is incorporated but not merged into a judgment of divorce, must be made by plenary action, and not by motion (see Spataro v Spataro, 268 AD2d 467, 468 [2000]; cf. Candela v Kiel, 33 AD3d 833 [2006]). Here, the plaintiff sought to modify the stipulation of settlement by motion rather than by plenary action. Consequently, the Supreme Court properly denied her request for relief.

The plaintiff’s remaining contentions are without merit. Crane, J.P., Krausman, Covello and Garni, JJ., concur.