Summary
In Farber v Farber (25 AD2d 850 [1966]), the Second Department dismissed a claim by the former wife that a Mexican divorce had been obtained by duress, holding that a period of three years, during which time the husband remarried, was "inexcusable laches."
Summary of this case from Kushnick v. KushnickOpinion
May 2, 1966
In an action: (1) to rescind and set aside a separation agreement; (2) to declare void a Mexican decree of divorce; (3) to obtain a judicial separation; and (4) to rescind a transfer of certain shares of corporate stock, etc., plaintiff appeals from: (1) an order of the Supreme Court, Queens County, entered May 19, 1965, which granted defendants' motion for summary judgment as to all the causes of action in the amended complaint other than the fourth (which cause had been dismissed previously); and (2) the judgment of said court, entered June 2, 1965, in favor of defendants pursuant to said order. Order and judgment modified: (1) by amending the order so as to (a) deny the motion insofar as it is addressed to the cause of action against the corporate defendant (the cause for rescission of the transfer of stock, etc.) and (b) direct that entry of judgment against plaintiff shall be in favor of the individual defendant only, on all causes which are against him only; (2) by severing said cause of action against the corporate defendant; and (3) by amending the decretal paragraphs of the judgment accordingly. As so modified, order and judgment affirmed, without costs. In our opinion, plaintiff's cause of action to set aside the Mexican divorce decree on the ground of duress is barred by her inexcusable laches. Plaintiff delayed for three years her institution of this action, during which time the defendant husband remarried. Plaintiff is estopped by the existence of the valid divorce decree from attacking the separation agreement, which is approved and incorporated by reference in the decree. ( Fink v. Goldblatt, 18 A.D.2d 629, affd. 13 N.Y.2d 957.) In our opinion, however, triable issues of fact exist as to the cause of action against the corporate defendant (cf. Farber v. Farber, 23 A.D.2d 721). Beldock, P.J., Christ, Hill, Rabin and Benjamin, JJ., concur.