
    Michael Suib, Appellant, v Jeane Suib, Respondent.
    [602 NYS2d 562]
   Levine, J.

Appeal from a judgment of the Supreme Court (Bradley, J.) granting defendant a divorce, entered September 25, 1992 in Ulster County, upon a decision of the court.

In the procedural posture of this action at the time and in view of the then-unrefuted defense alleged in plaintiff’s reply to defendant’s second counterclaim for divorce, based upon the ground of living apart pursuant to a separation agreement, it was error for Supreme Court to have granted defendant judgment on that counterclaim (see, Matter of Fertig, 184 AD2d 1015).

Weiss, P. J., Yesawich Jr., Mercure and Mahoney, JJ., concur. Ordered that the judgment is reversed, on the law, without costs.  