(concurring in part and dissenting in part). I concur in -so much of the majority -opinion as recognizes that it is axiomatic that the bilateral in -personam divorce decree superseded the judgment of separation which is now a nullity (Math v. Math, 39 A D 2d 583, affd. 31 N Y 2d 693; Lynn v. Lynn, 302 N. Y. 193, cert. den. 342 U. S. 849). It will remain a nullity unless and until the divorce decree is judicially set aside. (See Rosenstiel v. Rosenstiel, 16 N Y 2d 64.) In consequence, the separation decree cannot constitute the vehicle through which plaintiff’s application may be entertained.
*425I differ with so much of the majority opinion as remands this ease to Special Term for further inquiry as to whether there is any basis for the application of a rule of equitable estoppel which would allow ignoring the res judicata effect of the outstanding decree of divorce. Nothing, in my view, in the record on this appeal justifies such a disposition. Particularly in view of the factual concession in the majority opinion that “ Here there has been no proof of any facts which would justify an estoppel ” and legal concession that “ Quite clearly defendant’s voluntary payments do not constitute such proof (Lynn v. Lynn, supra, p. 205) ”.
Clear and compelling support for rejection of the need for further inquiry is found in the fact that at all times, before and after the separation decree and divorce and in all the proceedings pertinent to this appeal plaintiff was represented by the same attorney whose obviously reluctantly submitted affidavit in support of plaintiff’s application negates any valid finding of fraud, duress or equitable estoppel. We do not have a situation where defendant appears in any way to have deceived plaintiff or induced her to act to her prejudice. The plaintiff, in order to assert a proper claim of estoppel, must show in what manner and to what extent she relied upon defendant’s inconsistent conduct and was prejudiced thereby. (Glenesk v. Guidance Realty Corp., 36 A D 2d 852.) She has failed to do so. The record is totally bereft of factual data suggesting the need for further inquiry.
The order should be reversed on the law and defendant’s cross motion to dismiss plaintiff’s application granted on the ground that Special Term lacked jurisdiction to entertain this proceeding.
Kupferman, Tilzer and Capozzoli, JJ., concur with Steuer, J.; McGivern, P. J., concurs in part and dissents in part in an opinion.
Order, .Supreme Court, New York County, entered on September 26, 1973, reversed, on the law, and the application remanded to Special Term for further proceedings in accord with the opinion of this court filed herein.