| Granato v Granato |
| 2008 NY Slip Op 04779 [51 AD3d 589] |
| May 29, 2008 |
| Appellate Division, First Department |
| Barbara Granato, Appellant, v Pasquale Fabio Granato,Respondent. (And Another Action.) |
—[*1] Diahn W. McGrath, New York, for respondent. Dora M. Lassinger, East Rockaway, Law Guardian.
Order, Supreme Court, New York County (Laura Visitacion-Lewis, J.), entered on or aboutAugust 22, 2007, which, to the extent appealed from as limited by the brief, granted defendant'smotion to direct plaintiff to sell a home in Connecticut that she received pursuant to the parties'separation agreement, deemed plaintiff's child support obligations as having been settled bystipulation, reserved decision on plaintiff's applications for maintenance and child support arrearsand pendente lite counsel fees, and granted plaintiff's motion to vacate the note of issue whiledenying her application for the imposition of sanctions against defendant's counsel for allegedlyfiling it in a frivolous manner, unanimously modified, on the law and the facts, defendant'smotion to direct plaintiff to sell the Connecticut home denied, that portion of the order thatdeemed child support issues as having been resolved by agreement vacated, and otherwiseaffirmed, without costs.
The separation agreement pursuant to which plaintiff received the Connecticut home wasincorporated but not merged into the judgment of divorce. Therefore, it survives as a separatelyenforceable contract that cannot be set aside by motion but only by a plenary action in which anadequate record may be developed to evaluate defendant's claims of fraud, unconscionability andoverreaching (Frieland v Frieland, 200 AD2d 484 [1994]).
The record establishes that the parties' stipulation regarding the schooling of their childrenand defendant's obligation to pay the expenses associated therewith does not resolve alloutstanding child support issues. The resolution of such issues also must await trial in the plenaryaction.
To the extent that the order reserved decision, it is not appealable (CPLR 5701 [a] [2];Cobb v Kittinger, 168 AD2d 923 [1990]).[*2]
The court did not improvidently exercise its discretion indeclining to impose sanctions against defendant's counsel. Concur—Tom, J.P., Friedman,Nardelli, Catterson and Moskowitz, JJ.