Polito v. MACK-POLITO
| Decision Date | 09 September 2002 |
| Citation | 746 N.Y.S.2d 909,297 A.D.2d 637 |
| Parties | ROBERT J. POLITO, Respondent,<BR>v.<BR>MICHELLE MACK-POLITO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law, by deleting the provision thereof granting the motion of the plaintiff husband for a permanent injunction and substituting therefor a provision denying the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The parties entered into a separation agreement which provided, inter alia, that the plaintiff would waive his right to maintenance and equitable distribution. Under the circumstances, there is no question as to the validity of this agreement (see Zambito v Zambito, 171 AD2d 918; Breen v Breen, 114 AD2d 920). Therefore, the plaintiff's rights will not be threatened if the agreement is incorporated into a foreign judgment of divorce (Vanneck v Vanneck, 49 NY2d 602), and the Supreme Court should not have enjoined the defendant from prosecuting the foreign divorce action. Contrary to the defendant's assertion, the Supreme Court providently exercised its discretion in denying her cross motion to dismiss the action on the ground that there was a prior action pending (see CPLR 3211 [a] [4]; Whitney v Whitney, 57 NY2d 731; Graev v Graev, 219 AD2d 535).
The parties' remaining contentions are without merit.
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