SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
June 18, 1968
MARY S. STUBER, RESPONDENT,
W. JAMES STUBER, APPELLANT
Concur -- Eager, J. P., Steuer, Capozzoli, McGivern and Rabin, JJ.
The plaintiff does not have a cause of action, as alleged, to avoid and set aside the separation agreement entered into between herself and the defendant. The decree of divorce rendered in the State of Nevada expressly ratifies and approves such separation agreement and orders and directs the parties to abide by and execute the terms thereof. Inasmuch as the divorce decree is unchallenged, its provisions preclude the avoiding by plaintiff of such agreement on the basis of the allegations of fraud, misrepresentation and breaches thereof as set forth in the complaint. (See Fink v. Goldblatt, 18 A.D.2d 629
, affd. 13 N.Y.2d 957.) Although the separation agreement as such is immune from attack on the basis of the complaint in this action, the plaintiff may be possessed of remedies if the children of the marriage are not being adequately and properly supported by the defendant. (See Family Ct. Act, § 466, subd. [c]; McMains v. McMains, 15 N.Y.2d 283, 284, 285.)
Order, entered April 1, 1968, unanimously reversed, on the law, without costs or dibursements, defendant's motion for summary judgment granted and complaint dismissed, without prejudice, however, to the bringing of such action or proceeding as may be available to plaintiff in the circumstances.
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