Opinion
July 8, 1985
Appeal from the Supreme Court, Westchester County (Dachenhausen, J.).
Appeal taken as of right from stated portions of the order entered July 19, 1984 dismissed, without costs or disbursements. An order directing a judicial hearing to aid in the disposition of a motion is not appealable as of right ( Bagdy v. Progresso Foods Corp., 86 A.D.2d 589; Astuto v. New York Univ. Med. Center, 97 A.D.2d 805).
Defendant's notice of appeal is deemed an application for leave to appeal from the aforementioned stated portions of the order entered July 19, 1984. Application granted.
On appeal by permission, order entered July 19, 1984 reversed, insofar as appealed from, without costs or disbursements, plaintiff's motion denied in its entirety, and matter remitted to the Supreme Court, Westchester County, for determination of that branch of defendant's cross motion which sought an award of counsel fees.
Appeal from the order entered August 28, 1984 dismissed as academic, without costs or disbursements.
The principal branch of plaintiff's application sought to vacate the judgment of divorce between the parties which had been rendered more than 3 1/2 years earlier in accordance with their settlement agreement. In support, plaintiff alleged that the underlying settlement agreement was unfair, unknowingly executed and the product of defendant's misconduct. Even if we were to find that plaintiff's allegations, which, for the most part, are vague and conclusory, were sufficiently particularized to warrant a hearing on that branch of her motion ( cf. Chasin v. Chasin, 98 A.D.2d 788), we would nonetheless conclude that it should have been denied without the necessity of a hearing. By accepting the benefits of the judgment and acquiescing in it for a period of more than 3 1/2 years, plaintiff effectively waived her right to make such a challenge ( cf. Sheindlin v. Sheindlin, 88 A.D.2d 930, appeal dismissed 57 N.Y.2d 775; Barry v. Barry, 100 A.D.2d 920, affd 64 N.Y.2d 627; Stoerchle v. Stoerchle, 101 A.D.2d 831). The plaintiff's remaining requests for relief were dependent upon her application to vacate the judgment of divorce and therefore should have been denied in their entirety.
Mollen, P.J., Bracken, Niehoff and Rubin, JJ., concur.