Zavaglia v. Zavaglia

—Order unanimously affirmed without costs. Memorandum: Supreme Court denied plaintiff’s motion to set aside the opting-out agreement that was incorporated but not merged into the judgment of divorce. We agree that the order was proper but for a different reason. "A party seeking to set aside an agreement must do so by commencement of a plenary action, by affirmative defense or by counterclaim; such relief cannot be obtained on motion” (Gaines v Gaines, 188 AD2d 1048). Were we to reach the merits of plaintiff’s motion, we would affirm for reasons stated in the decision at Supreme Court.…