In the Second Department, it is well established that parties who desire to vacate a settlement agreement that was incorporated but not merged into the judgment of divorce must do so through a plenary action. SeeAlton v. Alton , 83 AD3d 972, 973 [2nd Dept. 2011] ; Barany v. Barany , 71 AD3d 613, 614 [2nd Dept. 2010] ; Makara v. Makara , 65 AD3d 1018, 109 [2nd Dept. 2009] ; Reiter v. Reiter , 39 AD3d 616 [2nd Dept. 2007] ; Candela v. Kiel , 33 AD3d 833, 834 [2nd Dept. 2006] ; Sloboda v. Sloboda , 24 AD3d 533, 535 [2nd Dept. 2005] ; Gottlieb v. Gottlieb , 294 AD2d 537, 538 [2nd Dept. 2002] ; Spataro v. Spataro , 268 AD2d 467, 468 [2nd Dept. 2000] ; Dombrowski v. Dombrowski , 239 AD2d 460 [2nd Dept. 1997] ; Fine v. Fine , 191 AD2d 410, 411 [2nd Dept. 1993] ; Riley v. Riley , 179 AD2d 750 [2nd Dept. 1992] ; Lambert v. Lambert , 142 AD2d 557 [2nd Dept. 1988] ; Culp v. Culp , 117 AD2d 700, 701 [2nd Dept. 1986]. "A separation agreement which does not merge into the judgment of divorce survives as a separate contract to which the parties are bound.
The stipulation also stated that the defendant received $30,000 in exchange for waiving part of her interest in the plaintiff's pension and that she was entitled to 16.5% of the pension. Since the plaintiff's demands contradicted the express language of the stipulation, the court properly denied those branches of the plaintiff's motion on the ground that modification of the stipulation can only be accomplished through a plenary action (see Dombrowski v Dombrowski, 239 A.D.2d 460, 460; Riley v Riley, 179 A.D.2d 750, 750).
However, contrary to the defendant's contention, the Supreme Court properly awarded the plaintiff summary judgment dismissing the defendant's third counterclaim, which sought to vacate the 2006 postnuptial agreement (see Sanfilippo v. Sanfilippo, 137 A.D.3d at 774, 31 N.Y.S.3d 78 ). In addition, while the defendant correctly contends that the 2002 postnuptial agreement was not properly acknowledged in the manner required by Domestic Relations Law § 236(B)(3) (see Galetta v. Galetta, 21 N.Y.3d 186, 192, 969 N.Y.S.2d 826, 991 N.E.2d 684 ), the evidence establishes that the defendant ratified that agreement by accepting the benefits of it and by waiting more than eight years to seek its ification (see Rio v. Rio, 110 A.D.3d 1051, 1054, 974 N.Y.S.2d 491 ; Percoco v. Lesnak, 24 A.D.3d 427, 428, 806 N.Y.S.2d 674 ; Riley v. Riley, 179 A.D.2d 750, 579 N.Y.S.2d 134 ). Accordingly, upon remittal, no inquiry into the validity of the 2002 postnuptial agreement or the 2006 postnuptial agreement will be necessary or warranted.
Other than the husband's testimony that he consulted with attorneys, the record contains no evidence that the husband contested or attempted to amend the COAP filed with his employer. Thus, there is nothing to preclude the application of the six-year breach of contract statute of limitations to bar this action ( Riley v. Riley, 179 AD2d 750). In view of the foregoing, we need not address the parties' other contentions.
Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court erred in determining that the defendant could challenge the stipulation of settlement before the entry of a judgment of divorce only by commencing a plenary action ( see Teitelbaum Holdings v. Gold, 48 NY2d 51, 56; Cruciata v. Cruciata, 10 AD3d 349; Bailey v. Assam, 269 AD2d 344; Arguelles v. Arguelles, 251 AD2d 611; Zeppelin v. Zeppelin, 245 AD2d 504; cf. Spataro v. Spataro, 268 AD2d 467; Riley v. Riley, 179 AD2d 750; Lambert v. Lambert, 142 AD2d 557). Nevertheless, the defendant failed to establish his entitlement to a downward modification of his support obligation ( see Matter of Hanlon v. Hanlon, 303 AD2d 505; Beard v. Beard, 300 AD2d 268).
In any event, the court properly determined that the defendant's motion was without merit. We further note that under the six-year Statute of Limitations for equitable actions set forth in CPLR 213(1), the defendant is now time-barred from commencing a plenary action (see, Riley v. Riley, 179 A.D.2d 750). O'BRIEN, J.P., S. MILLER, McGINITY, and SMITH, JJ., concur.
Moreover, the appellant's attempt to reform the 1981 amended separation agreement as unconscionable must fail since she was represented by counsel and she accepted the benefits of the agreement for 15 years before commencing suit (see, Stampfel v. Stampfel, 170 A.D.2d 595; Hirsch v. Hirsch, 134 A.D.2d 485). Additionally, her causes of action for rescission, fraud, and to impose a constructive trust are time-barred (see, CPLR 213[1], [2], [8]; Fiore v. Fiore, 247 A.D.2d 362; Riley v. Riley, 179 A.D.2d 750;Sitkowski v. Petzing, 175 A.D.2d 801; Frasca v. Frasca, 129 A.D.2d 766;Curry v. Chollette, 57 A.D.2d 604). Accordingly, the court correctly granted the defendant's motion to dismiss the complaint.
ORDERED that the order is affirmed, with costs. A separation agreement, which, as here, does not merge into the judgment of divorce, survives as a separate contract to which the parties are bound (see, Riley v. Riley, 179 A.D.2d 750; Lambert v. Lambert, 142 A.D.2d 557). Consequently, while a judgment of divorce may be attacked pursuant to CPLR 5105, the underlying separation agreement will remain unimpeached unless challenged in a plenary action (see, Riley v. Riley, supra; Culp v. Culp, 117 A.D.2d 700).
This record does not establish that the parties agreed that their stipulation of settlement was to survive entry of the judgment ( cf., Nicoletti v. Nicoletti, 43 A.D.2d 699; see also, Cooper v. Cooper, 179 A.D.2d 1035, 1036). Contrary to the conclusion of the Supreme Court, we do not find that the defendant is relegated to a plenary action to set aside the stipulation and the judgment entered thereon ( cf., Riley v. Riley, 179 A.D.2d 750). The ordered hearing should go forward to resolve that question, among others, such as the defendant's unresolved motion, inter alia, to vacate the judgment of divorce on the ground that it was untimely submitted to the court for its signature ( see, 22 NYCRR 202.48). Mangano, P.J., Bracken, Krausman and McGinity, JJ., concur.
Ordered that the order is modified, on the law, by adding thereto a provision providing that the plaintiff's motion is denied without prejudice to the commencement of a plenary action; as so modified, the order is affirmed, without costs or disbursements. The court properly denied the plaintiff's motion to set aside the parties' December 19, 1994, stipulation of settlement, which was incorporated but not merged into their judgment of divorce, because a party may challenge the terms of such an "independent contract" only by way of a plenary action (Fine v Fine, 191 A.D.2d 410; Riley v. Riley, 179 A.D.2d 750; Lambert v Lambert, 142 A.D.2d 557). After the court properly noted that the only way to challenge the stipulation was by way of a plenary action, it went on to make findings of fact and conclusions of law which we deem to be dicta in the absence of an adequately developed record (see, e.g, Caldwell v. Caldwell, 209 A.D.2d 1022; Frieland v Frieland, 200 A.D.2d 484). It was erroneous for the court to have done so, and the dicta should be without binding effect in the plaintiff's plenary action.