Ordered that the order is modified, on the law, by (1) deleting the provision thereof, upon renewal, granting the plaintiff's prior motion for summary judgment dismissing the defendant's second counterclaim and substituting therefor a provision, upon renewal, denying the motion, and (2) deleting the provision thereof setting aside the prenuptial agreement; as so modified, the order is affirmed, with costs to the defendant, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings before a different justice.
The issue of the timeliness of the plaintiffs challenges to the enforceability of the parties' prenuptial agreement, including the ground raised in her motion for leave to renew, was argued and determined on a prior appeal ( see DeMille v DeMille, 5 AD3d 428). Thus, upon renewal, the Supreme Court should not have granted the plaintiffs prior motion for summary judgment dismissing the defendant's second counterclaim to enforce the agreement and should not have set aside the agreement based on such challenges.
The defendant's remaining contentions are without merit.
[ See 5 Misc 3d 355 (2004).]