Opinion
October 28, 1985
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Order affirmed, with costs.
"Although a separation agreement may be the basis of a conversion divorce even though substantial provisions of the agreement are unenforceable (Domestic Relations Law, § 170, subd [6]; Christian v Christian, 42 N.Y.2d 63), such a divorce may not be granted if the agreement is void ab initio as the result of fraud, duress or incapacity" (Angeloff v Angeloff, 56 N.Y.2d 982, 983-984). At bar, plaintiff's broad challenge to the validity of the entire agreement as being void ab initio seems to focus primarily on the financial provisions of the agreement (see, Schisler v Schisler, 106 A.D.2d 441; Wiecek v Wiecek, 104 A.D.2d 935). In any event, plaintiff's conclusory allegations of fraud, duress and lack of capacity failed to raise triable issues of fact as to the validity of the separation agreement as a whole, particularly since she was represented by counsel (see, Wile v Wile, 100 A.D.2d 932; Davidoff v Davidoff, 93 A.D.2d 805; Russell v Russell, 90 A.D.2d 516, lv denied 58 N.Y.2d 605). Therefore, that branch of defendant's motion which was for summary judgment on his counterclaim for a divorce under Domestic Relations Law § 170 (6) was properly granted upon reargument. O'Connor, J.P., Niehoff, Rubin and Lawrence, JJ., concur.