Opinion
Submitted May 14, 1982
Decided June 17, 1982
Appeal from the Supreme Court, New York County, ALFRED M. ASCIONE, J.
Beatrice Rothaus for appellant.
Maris Bibelnieks and Dzintra Bibelnieks for respondent.
MEMORANDUM.
The judgment appealed from and the order of the Appellate Division brought up for review should be modified, without costs, so as to deny counsel fees to plaintiff wife, and, as so modified, affirmed.
We agree with the Appellate Division's disposition of the defendant husband's Statute of Limitations defense for reasons stated in its opinion. We also agree that a party to a separation agreement may not attack the validity of the agreement collaterally after it has been incorporated, as it was here, in a valid, bilateral foreign decree of divorce ( Greschler v Greschler, 51 N.Y.2d 368, 376-377; Fink v Goldblatt, 18 A.D.2d 629, affd 13 N.Y.2d 957; see 19 Carmody-Wait 2d, N Y Prac, p 563). Therefore, the husband's affirmative defense, in which he alleged that the separation agreement was void because of his emotional state and lack of counsel at the time of its execution, may not be raised in this action.
Nor was there merit to the husband's affirmative defense of laches. He has failed to show that he was prejudiced by the wife's alleged undue delay in asserting her right to arrears (see Sorrentino v Mierzwa, 25 N.Y.2d 59).
As to counsel fees, we believe Justice SILVERMAN'S partial dissenting opinion at the Appellate Division correctly distinguishes Fabrikant v Fabrikant ( 19 N.Y.2d 154). Unlike in Fabrikant, the divorce decree here, as modified by the 1975 Family Court order, no longer requires the level of support provided for by the separation agreement. Accordingly, while the wife was not bound by the support provision of the decree and so was privileged to proceed under the separation agreement, by electing to do so she chose a litigation path to which the provision for counsel fees in section 238 of the Domestic Relations Law was not applicable.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Judgment appealed from and order of the Appellate Division brought up for review modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.