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Supreme Court, Appellate Division, Second Department, New York.

Mary-Catherine CARTER, respondent, v. Guy Thomas CARTER, appellant.

Decided: October 25, 1999

SONDRA MILLER, J.P., WILLIAM C. THOMPSON, GABRIEL M. KRAUSMAN, ANITA R. FLORIO and ROBERT W. SCHMIDT, JJ. Bloom & Bloom, P.C., New Windsor, N.Y. (Peter E. Bloom of counsel), for appellant. Joseph Deutsch, New City, N.Y., for respondent.

In a matrimonial action in which the parties were divorced by a judgment dated October 25, 1996, the defendant appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated April 6, 1999, which denied his motion, inter alia, to modify the judgment of divorce by directing that the defendant's 401K plan be divided between the parties as of January 15, 1994, instead of January 3, 1994.

ORDERED that the order is affirmed, with costs.

 A separation agreement, which, as here, does not merge into the judgment of divorce, survives as a separate contract to which the parties are bound (see, Riley v. Riley, 179 A.D.2d 750, 579 N.Y.S.2d 134;  Lambert v. Lambert, 142 A.D.2d 557, 530 N.Y.S.2d 223).   Consequently, while a judgment of divorce may be attacked pursuant to CPLR 5105, the underlying separation agreement will remain unimpeached unless challenged in a plenary action (see, Riley v. Riley, supra;  Culp v. Culp, 117 A.D.2d 700, 498 N.Y.S.2d 846).  The failure of the defendant to commence a plenary action is fatal to his application.


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