Ordered that the order is affirmed, with costs.
The parties entered into a separation agreement which was thereafter incorporated, but not merged, into a judgment of divorce. Accordingly, the separation agreement continued in effect as a separate and independent contractual arrangement between the parties, and the subsequent modification of the judgment of divorce did not operate as a modification of the separation agreement, and does not foreclose the plaintiff wife's right to sue on the contract for the difference between the reduced award and the amount provided for in the separation agreement (see, Merl v Merl, 67 N.Y.2d 359; Kleila v Kleila, 50 N.Y.2d 277; Goldman v Goldman, 282 N.Y. 296; Donnelly v Matheson, 112 A.D.2d 341).
The instant action was brought in the Civil Court of the City of New York, Kings County, by the plaintiff to recover arrears due under the separation agreement, and the defendant concedes that the Civil Court has jurisdiction over the action. The defendant contends, for the first time on appeal, that this action is a declaratory judgment action seeking "to delineate the rights, duties and obligations of the parties arising out of the marital relationship" and, as such, the action should be transferred to the Supreme Court, Kings County. However, it is clear that the action is one to recover damages for breach of a contract, i.e., the separation agreement which creates obligations separate and distinct from the divorce judgment, and the complaint does not seek a delineation of rights or obligations arising out of the marital relationship. Thus, the action is properly before the Civil Court of the City of New York, Kings County. Thompson, J.P., Bracken, Lawrence and Harwood, JJ., concur.