Opinion
May 19, 1997
Appeal from the Supreme Court, Orange County (Owen, J.).
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.
Rosenblatt, J.P., Miller, Thompson and Friedmann, JJ., concur.