OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order modified, with costs to plaintiff, by denying defendant’s motion for partial summary judgment and, as so modified, affirmed. Although a separation agreement may be the basis of a conversion divorce even though substan *984 tial provisions of the agreement are unenforceable (Domestic Relations Law, § 170, subd [6]; Christian v Christian, 42 NY2d 63), such a divorce may not be granted if the agreement is void ab initio as the result of fraud, duress or incapacity. To hold otherwise would be to read out of subdivision (6) of section 170 the requirement that such a divorcé be based upon a separation agreement. The statute requires more than living separate and apart, for one year. Because the affidavits establish the existence of triable issues concerning the validity of the entire agreement, rather than simply a part of the agreement, there must be a trial.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.