In an action, inter alia, for a divorce, defendants appeal from an order of the Supreme Court, Richmond County, dated May 21, 1980, which denied their motion to dismiss the complaint. Order affirmed, without costs or disbursements. Special Term, the affidavits of the parties at Special Term, and the briefs on *648appeal have treated that part of the motion to dismiss as to the "first”, "second” and "third” causes of action as one for summary judgment; therefore, we will treat that part of the motion as such. (See Maybrown v Malveme Distrs., 57 AD2d 548, 549, mot for lv to app den 42 NY2d 804.) We agree with Special Term that the record presents questions of fact concerning the validity of the separation agreement which require a trial. In addition, we find that the allegations in the "fourth” and "fifth” causes of action are legally sufficient. (Cf. Simonds v Simonds, 45 NY2d 233; Janke v Janke, 47 AD2d 445, affd 39 NY2d 786, on the opn of Mr. Justice Goldman at the App Div.) Damiani, J. P., Gulotta, Martuscello and O’Connor, JJ., concur.