DeMILLE v. DeMILLE (2006)

In an action, inter alia, for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Nassau County (Falanga, J.), dated July 1, 2004, which granted the plaintiff's prior motion for leave to renew and, upon renewal, granted the plaintiff's motion for summary judgment dismissing the defendant's second counterclaim to enforce the parties' prenuptial agreement and, inter alia, set aside the prenuptial agreement.

ORDERED that the order is modified, on the law, by (1) deleting the provision thereof, upon renewal, granting the plaintiff's prior motion for summary judgment dismissing the defendant's second counterclaim and substituting therefor a provision, upon renewal, denying the motion, and (2) deleting the provision thereof setting aside the prenuptial agreement;  as so modified, the order is affirmed, with costs to the defendant, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings before a different Justice.

The issue of the timeliness of the plaintiff's challenges to the enforceability of the parties' prenuptial agreement, including the ground raised in her motion for leave to renew, was argued and determined on a prior appeal (see DeMille v. DeMille, 5 A.D.3d 428, 774 N.Y.S.2d 156).   Thus, upon renewal, the Supreme Court should not have granted the plaintiff's prior motion for summary judgment dismissing the defendant's second counterclaim to enforce the agreement and should not have set aside the agreement based on such challenges.

The defendant's remaining contentions are without merit.