Krehling v. Krehling

— Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The parties entered into a separation agreement on June 7, 1989. That agreement was incorporated but not merged in a judgment of divorce granted to defendant. Thereafter, plaintiff commenced this action to set aside the agreement on the grounds of unfairness, undue influence, lack of financial disclosure and overreaching. Defendant appeals 1040 from Supreme Court’s order that denied his motion to dismiss the complaint and granted plaintiffs cross motion that sought financial disclosure and discovery. Defendant’s argument that the complaint should have been dismissed because plaintiffs vague and conclusory allegations of unfairness, undue influence, lack of financial disclosure and overreaching are insufficient as a matter of law, is raised for the first time on appeal, and therefore, that argument is not properly before us (see, MacMaster v Sardina, 182 AD2d 1132; Kocher v Baird, 174 AD2d 1042). Supreme Court erred, however, in granting plaintiffs cross motion and we therefore modify the order to deny it. Plaintiff failed to establish the requisite "legitimate factual predicate” for the discovery sought and there is no basis to depart from the general rule that financial disclosure is inappropriate unless and until the existing separation agreement is set aside (see, Rupert v Rupert [appeal No. 1], 190 AD2d 1027 [decided herewith]; Fakiris v Fakiris, 177 AD2d 540, 543; Cruey v Cruey, 159 AD2d 241; Gilsten v Gilsten, 137 AD2d 411, 413; Oberstein v Oberstein, 93 AD2d 374). (Appeal from Order of Supreme Court, Monroe County, Galloway, J. — Set Aside Separation Agreement.) Present — Denman, P. J., Pine, Balio, Fallon and Davis, JJ.