Opinion
January 20, 2000
Order, Supreme Court, New York County (Marylin Diamond, J.), entered on or about May 13, 1999, which, in an action between former spouses for, inter alia, fraud and rescission of their separation agreement, denied defendant's motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.
George F. Carpinello, for plaintiff-respondent.
Robert E. Juceam, for defendant-appellant.
WILLIAMS, J.P., MAZZARELLI, WALLACH, ANDRIAS, FRIEDMAN, JJ.
The motion should be denied since an issue of fact exists as to whether plaintiff's appearance in the Dominican Republic by power of attorney for the purpose of obtaining a divorce was induced by defendant's misrepresentations concerning his assets and/or by his physical abuse of plaintiff. If so, the separation agreement, which was executed contemporaneously with the power of attorney, can be collaterally attacked without seeking to vacate the divorce decree (cf., Greschler v. Greschler, 51 N.Y.2d 368, 375-376). We note that the separation agreement, by its express terms, survived entry of the divorce decree.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.