Singer v. Singer

Full title: ANNE L. SINGER, Respondent, v. ROBERT J. SINGER, Appellant, et al.…

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

Date published: May 17, 1999

261 A.D.2d 531 (N.Y. App. Div. 1999)

690 N.Y.S.2d 621

Opinion

May 17, 1999

Appeal from the Supreme Court, Putnam County (Carey, J.H.O.).

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision ( see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,

Ordered that the appeal from the order dated June 25, 1997, is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see, CPLR 5501 [a] [1]).

Contrary to the appellant's contention, the separation agreement was enforceable as an independent contract in this plenary action commenced by the plaintiff ( see, General Obligations Law §§ 3-309 Gen. Oblig., 3-313 Gen. Oblig.[2]; Rainbow v. Swisher, 72 N.Y.2d 106, 109; Kleila v. Kleila, 50 N.Y.2d 277, 283). Although the parties' agreement would not be enforceable as an "opting out" agreement in a matrimonial action because it was not acknowledged ( see, Domestic Relations Law § 236 [B] [3]; Matisoff v. Dobi, 90 N.Y.2d 127), the action at bar was commenced to recover damages, inter alia, for breach of contract. Since the appellant's companion action for a divorce was dismissed prior to the trial of the action at bar, we find no impediment to enforcement in a contract action of the provisions of the parties' agreement insofar as it concerns their personal property and certain monetary obligations ( cf., Detmer v. Detmer, 248 A.D.2d 582; Youngkrans v. Youngkrans, 245 A.D.2d 1142).

O'Brien, J. P., Santucci, Joy and Goldstein, JJ., concur.