SPATARO v. SPATARO

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.