Wohlers v Wohlers

Wohlers v Wohlers 2007 NY Slip Op 10331 [46 AD3d 1444] December 21, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

Eric W. Wohlers, Respondent, v Jacqueline T. Wohlers, Appellant.

—[*1] Gerald J. Vella, Springville, for defendant-appellant.

M. Mark Howden, Olean, for plaintiff-respondent.

Appeal from a judgment of the Supreme Court, Cattaraugus County (Larry M. Himelein, A.J.), entered September 12, 2006 in a divorce action. The judgment, among other things, dissolved the marriage between the parties.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking a divorce on the ground that the parties have lived separate and apart pursuant to a separation and property settlement agreement (agreement) for a period in excess of one year from the date of the agreement. Supreme Court properly granted plaintiff's motion for summary judgment on the complaint. The record establishes that defendant previously commenced an action seeking to set aside the agreement as unconscionable, and the court granted plaintiff's motion for summary judgment dismissing the complaint in that action and upheld the validity of the agreement. "Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party" (Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]), and defendant thus is collaterally estopped from challenging the validity of the agreement in this action. Present—Scudder, P.J., Gorski, Lunn, Fahey and Green, JJ.