Saxon v. Saxon , 458 N.Y.S.2d 376 ( 1982 )

— Order unanimously reversed, with costs. Memorandum: Plaintiff wife instituted this action to obtain a divorce on various grounds and to void a prior separation agreement. Before an answer had been served, she moved at Special Term for relief pendente lite. The court, after hearing the motion but after an interval of time during which an answer was served, voided the separation agreement and, in effect, granted plaintiff summary judgment on that part of her cause of action. Defendant appeals. The court erred in granting partial summary judgment upon a motion made before issue was joined (CPLR 3212, subd |a]). Moreover, the separation agreement could not have been set aside as a matter of law, solely on the ground that plaintiff and defendant were represented by one attorney; proof of overreaching and unfairness was required before that relief could be granted (Levine v Levine, 56 NY2d 42, 47). (Appeal from order of Supreme Court, Erie County, Sedita, J. —divorce — separation agreement.) Present — Simons, J. P., Hancock, Jr., Callahan, Boomer and Moule, JJ.