Opinion
2000-11516
Argued October 4, 2001.
September 10, 2002.
In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Panepinto, J.), dated October 30, 2000, as granted the motion of the plaintiff husband for a permanent injunction enjoining her from prosecuting an action for a divorce in the District of Columbia, and denied her cross motion pursuant to CPLR 3211(a)(4) and (7) to dismiss the action.
Edward P. Kallen, P.C., New York, N.Y. (Janet Rosen of counsel), for appellant.
Menicucci Associates, PLLC, Staten Island, N.Y. (Pamela I. Tillman and Michael V. Ajello of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the plaintiff husband for a permanent injunction and substituting therefor a provision denying the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The parties entered into a separation agreement which provided, inter alia, that the plaintiff would waive his right to maintenance and equitable distribution. Under the circumstances, there is no question as to the validity of this agreement (see Zambito v. Zambito, 171 A.D.2d 918; Breen v. Breen, 114 A.D.2d 920). Therefore, the plaintiff's rights will not be threatened if the agreement is incorporated into a foreign judgment of divorce (Vanneck v. Vanneck, 49 N.Y.2d 602), and the Supreme Court should not have enjoined the defendant from prosecuting the foreign divorce action. Contrary to the defendant's assertion, the Supreme Court providently exercised its discretion in denying her cross motion to dismiss the action on the ground that there was a prior action pending (see CPLR 3211[a][4]; Whitney v. Whitney, 57 N.Y.2d 731; Graev v. Graev, 219 A.D.2d 535).
The parties' remaining contentions are without merit.
SANTUCCI, J.P., GOLDSTEIN, TOWNES and COZIER, JJ., concur.