Opinion
August 4, 1986
Appeal from the Supreme Court, Queens County (Glass, J.).
Cross appeal from that branch of the order dated October 15, 1985 which denied the plaintiff's cross motion for summary judgment, dismissed, without costs or disbursements. That branch of the order was superseded by the order dated November 4, 1985, made upon renewal.
Order dated November 4, 1985, affirmed insofar as appealed from, without costs or disbursements.
Order dated October 15, 1985, affirmed insofar as appealed from by the defendant, without costs or disbursements.
Order dated June 20, 1985 modified to the extent that only discovery as to the plaintiff's financial circumstances for the period subsequent to January 17, 1983 is stayed. As so modified, order affirmed, without costs or disbursements. The deposition of the plaintiff as to his and the parties' joint income and assets prior to January 17, 1983, pursuant to the notice dated April 29, 1985, shall proceed at a time and place to be set forth in a notice of not less than 10 days, to be given by the defendant or at such other time and place as the parties may agree.
The court properly determined that neither party should be granted summary judgment in this conversion divorce action since there are triable issues of fact as to the validity of the separation agreement (see, Angeloff v Angeloff, 56 N.Y.2d 982; Christian v Christian, 42 N.Y.2d 63).
Although the plaintiff's present financial circumstances are not relevant until a final determination is made as to the validity of the separation agreement, the plaintiff should be required to disclose his income and assets for the three-year period prior to execution of the separation agreement (see, Potvin v Potvin, 92 A.D.2d 562). Lazer, J.P., Bracken, Kooper and Spatt, JJ., concur.