Such v. Gottlieb

—Order, Supreme Court, New York County (Marylin Diamond, J.), entered on or about May 13, 1999, which, in an action between former spouses for, inter alla, fraud and rescission of their separation agreement, denied defendant’s motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

The motion should be denied since an issue of fact exists as to whether plaintiff’s appearance in the Dominican Republic by power of attorney for the purpose of obtaining a divorce was induced by defendant’s misrepresentations concerning his assets and/or by his physical abuse of plaintiff. If so, the separation agreement, which was executed contemporaneously with *257the power of attorney, can be collaterally attacked without seeking to vacate the divorce decree (cf., Greschler v Greschler, 51 NY2d 368, 375-376). We note that the separation agreement, by its express terms, survived entry of the divorce decree. Concur—Williams, J. P., Mazzarelli, Wallach, Andrias and Friedman, JJ. [See, 273 AD2d —, June 13, 2000.]