Opinion
November 30, 1987
Appeal from the Supreme Court, Westchester County (Ruskin, J.).
Ordered that the order is affirmed, with costs.
Upon a review of the record, we find issues of fact which warrant a trial on the validity of the parties' separation agreement.
Although we recognize that a conversion divorce may be granted even if enforcement of the financial provisions of the agreement is denied (see, Christian v. Christian, 42 N.Y.2d 63; Schisler v Schisler, 106 A.D.2d 441; Russell v. Russell, 90 A.D.2d 516; Picotte v. Picotte, 82 A.D.2d 983), we decline to do so. The plaintiff has alleged that the agreement was void on the basis of fraud, duress and incapacity, which, if found to be true at the trial, would preclude the entry of summary judgment awarding the conversion divorce pursuant to Domestic Relations Law § 170 (6) (Angeloff v. Angeloff, 56 N.Y.2d 982; Weinstock v. Weinstock, 122 A.D.2d 790; Davidoff v. Davidoff, 93 A.D.2d 805). Mollen, P.J., Rubin, Kooper and Sullivan, JJ., concur.