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Carter v. Carter

Appellate Division of the Supreme Court of New York, Second Department
Oct 25, 1999
265 A.D.2d 520 (N.Y. App. Div. 1999)

Opinion

October 25, 1999

In a matrimonial action in which the parties were divorced by a judgment dated October 25, 1996, the defendant appeals from an order of the Supreme Court, Rockland County (Weiner, J.).


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 ). The failure of the defendant to commence a plenary action is fatal to his application.

S. MILLER, J.P., THOMPSON, KRAUSMAN, FLORIO, and SCHMIDT, JJ., concur.


Summaries of

Carter v. Carter

Appellate Division of the Supreme Court of New York, Second Department
Oct 25, 1999
265 A.D.2d 520 (N.Y. App. Div. 1999)
Case details for

Carter v. Carter

Case Details

Full title:MARY-CATHERINE CARTER, respondent, v. GUY THOMAS CARTER, appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 25, 1999

Citations

265 A.D.2d 520 (N.Y. App. Div. 1999)
697 N.Y.S.2d 127

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