Opinion
October 14, 1980
In an action, inter alia, for a divorce, defendants appeal from an order of the Supreme Court, Richmond County, dated May 21, 1980, which denied their motion to dismiss the complaint. Order affirmed, without costs or disbursements. Special Term, the affidavits of the parties at Special Term, and the briefs on appeal have treated that part of the motion to dismiss as to the "FIRST", "SECOND" and "THIRD" causes of action as one for summary judgment; therefore, we will treat that part of the motion as such. (See Maybrown v. Malverne Distrs., 57 A.D.2d 548, 549, mot for lv to app den 42 N.Y.2d 804.) We agree with Special Term that the record presents questions of fact concerning the validity of the separation agreement which require a trial. In addition, we find that the allegations in the "FOURTH" and "FIFTH" causes of action are legally sufficient. (Cf. Simonds v. Simonds, 45 N.Y.2d 233; Janke v. Janke, 47 A.D.2d 445, affd 39 N.Y.2d 786, on the opn of Mr. Justice Goldman at the App. Div..) Damiani, J.P., Gulotta, Martuscello and O'Connor, JJ., concur.