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MARY CLARK SPATARO, respondent, v. WILLIAM H. SPATARO, appellant.

DECISION ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court erred in entertaining the defendant's motion on the merits, as a motion is not the proper vehicle for challenging a separation agreement incorporated but not merged into a divorce judgment. Rather, the defendant should have commenced a plenary action seeking vacatur or reformation of the agreement (see, Matter of Scalabrini v. Scalabrini, 242 A.D.2d 725; Dombrowski v. Dombrowski, 239 A.D.2d 460; Darragh v. Darragh, 163 A.D.2d 648, 649; Lambert v. Lambert, 142 A.D.2d 557, 558; see also, Christian v. Christian, 42 N.Y.2d 63, 72).

In any event, the court properly determined that the defendant's motion was without merit. We further note that under the six-year Statute of Limitations for equitable actions set forth in CPLR 213(1), the defendant is now time-barred from commencing a plenary action (see, Riley v. Riley, 179 A.D.2d 750).

O'BRIEN, J.P., S. MILLER, McGINITY, and SMITH, JJ., concur.

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SPATARO v. SPATARO
(Jan 18, 2000)