MULLEN v. MULLEN (1999)

In an action for a divorce and to set aside a separation agreement, the defendant husband appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Dutchess County (Beisner, J.), dated February 26, 1998, as, upon reargument, granted the wife's cross motion for summary judgment on her second cause of action and declared that the parties' separation agreement was void ab initio.

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.

We agree with the Supreme Court that there exist no triable issues of fact as to whether, after executing the separation agreement, the parties resumed the marital relationship and exhibited the intention to abandon the agreement (see, Matter of Wilson, 50 N.Y.2d 59, 427 N.Y.S.2d 977, 405 N.E.2d 220;  cf., Sepenoski v. Sepenoski, 188 A.D.2d 457, 591 N.Y.S.2d 63).  Notably, the parties resided together for seven years after executing the agreement, engaged in sexual relations on occasion, and took vacations together during that period of time.

The husband's remaining contentions are without merit.

MEMORANDUM BY THE COURT.