Cordero v. Cordero

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered June 10, 1992, which, after a hearing, denied defendant’s motion to vacate or modify a judgment of divorce entered July 5, 1989, unanimously affirmed, without costs.

Plaintiff husband obtained an uncontested judgment of divorce based upon an affidavit of uncontestability and a custody agreement (incorporated in the judgment but not merged therein) which defendant wife now claims were obtained by coercion and duress. The evidence adduced at the hearing does not support an allegation that plaintiff acted coercively at the time the agreement and affidavit were signed.

Because defendant sought to vacate an agreement not merged in the divorce decree by way of a motion brought on by order to show cause, our proper course ordinarily would be to dismiss the proceeding without prejudice to a plenary action for the relief sought (Frieland v Frieland, 200 AD2d 484 [decided herewith]). Here, however, the court specifically retained continuing jurisdiction over matters pertaining to the terms of the parties’ agreement. Unlike in Frieland, the show cause order here was personally served upon plaintiff. Furthermore, the parties here had a full fact-finding hearing. Accordingly, in this posture of the matter, we affirm on the merits.

We have considered defendant’s remaining contentions and find them to be without merit. Concur — Sullivan, J. P., Wallach, Asch and Nardelli, JJ.