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ZAVAGLIA v. ZAVAGLIA

234 A.D.2d 1010 (1996)

652 N.Y.S.2d 572

Rose C. Zavaglia, Appellant, v. Salvatore Zavaglia, Respondent

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

December 30, 1996

Order unanimously affirmed without costs.

Memorandum:

Supreme Court denied plaintiff's motion to set aside the opting-out agreement that was incorporated but not merged into the judgment of divorce. We agree that the order was proper but for a different reason. "A party seeking to set aside an agreement must do so by commencement of a plenary action, by affirmative defense or by counterclaim; such relief cannot be obtained on motion" (Gaines v Gaines

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