| N.Y. App. Div. | Mar 18, 1993
—Order, Supreme Court, New York County (David B. Saxe, J.), entered on or about July 21, 1992, which, inter alia, granted plaintiiFs motion for leave to serve an amended complaint and which denied defendant’s cross-motion to dismiss the complaint, unanimously affirmed, without costs.
We agree with the IAS Court that plaintiff-wife should be permitted to amend her complaint to allow for proper pleading of a conversion divorce based on the parties’ separation agreement (Domestic Relations Law § 170 [6]), since at this juncture the defendant has not established plaintiff’s failure to substantially perform all the terms and conditions of the separation agreement necessary to state such a cause of action. Moreover, the IAS Court properly reserved to itself the issue of sole custody and appropriate child support, and thus it was not error to defer for a later date the defendant’s application for the appointment of a guardian for the children. Nor was it error not to issue an immediate order setting temporary child support. We note that plaintiff may make new application for temporary immediate relief if the financial situation warrants and the court may take into consideration the Child Support Standards Act. We have considered the other contentions and find them to be without merit. Concur— Rosenberger, J. P., Ellerin, Ross, Asch and Kassal, JJ.