(dissenting). I disagree with the majority, which sustained the determination at Special Term, granting summary judgment dismissing defendant’s seventh affirmative defense and counterclaim as barred by res judicata and/or collateral estoppel. Accordingly, I would reverse the order to the extent appealed from and reinstate the seventh affirmative defense and counterclaim alleged in the answer.
The parties were married on October 2,1969. On September 5, 1970, they entered into a separation agreement and were subsequently divorced in Mexico on October 24, 1970, the separation agreement being incorporated, but not merged, in the divorce judgment. There is one child, born April 29, 1970.
Paragraph 9 (a) of the separation agreement fixed child support at $500 per month. Paragraph 9 (b) provided for an escalation formula for increases in support and maintenance of their daughter, Christina, on the basis of $50 per month for each $5,000 net after taxes earned by the husband in excess of $30,000. Paragraph 9 (c) of the agreement further obligated defendant to pay all reasonable medical, dental and educational expenses.
In January 1977, prior to commencement of this action, plaintiff had brought a proceeding in the Family Court to recover six months arrears in child support, totaling $3,000. Defendant there counterclaimed, inter alia, to set aside the agreement on the ground of fraud and duress and for an equitable apportionment of monthly child support. The Family Court, in an order entered April 29,1977, dismissed the counterclaim and awarded plaintiff $3,000 for arrearages in child support payments. We affirmed the order without opinion (61 AD2d 893) and defendant has fully complied with our direction.
Subsequently, in May 1982, this action was brought in the Supreme Court to recover arrears for private school tuition for the five-year period beginning with the school year 1977-78, pursuant to paragraph 9 (c) of the agreement, and to enforce the automatic escalation formula under paragraph 9 (b). In his answer, defendant interposed seven affirmative defenses and one counterclaim. The seventh affirmative defense and counterclaim alleges that paragraphs 9 (b) and (c), dealing with escalated support based upon defendant’s increased earnings and tuition payments were unfair and inequitable when made and, taking into account that plaintiff’s earnings exceeded $85,000 *347per year, the agreement failed to provide for an apportionment of support obligations commensurate with the respective earnings and financial ability of both parties.
Special Term granted plaintiff’s motion to dismiss the affirmative defense and counterclaim, holding that defendant was barred by res judicata from relitigating the counterclaim, which the court found had been passed upon in the prior proceeding in the Family Court. To the contrary, the Family Court proceeding to recover arrears in support under paragraph 9 (a) of the agreement did not involve any issue concerning either paragraph 9 (b) or (c). Inasmuch as consideration of the issue sought to be raised in this action was not permitted to be presented in the Family Court and, in any event, could not be litigated in the prior Family Court proceeding, there is lacking here the critical requisites to invoke the alternate doctrines of res judicata or collateral estoppel. This requires “an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling.” (Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 71; Vavolizza v Krieger, 33 NY2d 351, 356; cf. Mutual Fire, Mar. & Inland Ins. Co. v James & Co., 92 AD2d 203, 207, affd 61 NY2d 680.)
In our case, there is neither “identity of issue” nor has there been any “opportunity” afforded defendant to contest the validity of paragraphs 9 (b) and (c) of the agreement, in particular, defendant’s seventh affirmative defense that those subdivisions at issue here should be set aside as unfair when made and inequitable now and that there should be an apportionment of support obligations commensurate with the respective earnings and financial ability of the parties. In my view, the majority has misperceived the nature and substance of the seventh affirmative defense interposed in this action, which was not and could not have been asserted in the earlier Family Court proceeding. Thus, neither res judicata nor collateral estoppel applies here. Unlike the situation in Mutual Fire, Mar. & Inland Ins. Co. v James & Co. (supra), the issue is not the same and, therefore, principles of justice and elementary fairness require that defendant be accorded a legitimate opportunity to defend the action and to set aside the separation agreement. Plaintiff-respondent essentially concedes that the issue was not involved in the prior proceeding, stating on the previous appeal from the Family Court’s order of support (appeal No. 1764, 61 AD2d 893), “It is well settled law that the Family Court cannot and will not alter appellant’s contract nor excuse him from performance under it.” *348The majority, by denying that right, has effectively deprived him of fundamental due process rights since that remedy was not available to him in the Family Court.
Moreover, it further appears that the issues sought to be raised could not have been passed upon by the Family Court in the earlier proceeding since that court lacked equity jurisdiction to set aside or modify the terms of the separation agreement (see, Matter of Brescia v Fitts, 56 NY2d 132, 139; see also, Loomis v Loomis, 288 NY 222). The majority incorrectly relies upon the Court of Appeals opinion in Brescia. The issue in our case is not the right of the child to receive “adequate support,” a matter which is clearly within the power of the Family Court to adjudicate under Family Court Act § 461 [a] and [b]. (See, Matter of Brescia v Fitts, 56 NY2d, at p 139.) Here, the question is the right of the father to obtain a judicial determination as to his claim that these portions of the separation agreement are unconscionable, should be set aside and, thereafter, there should be a readjustment of the respective obligations of the parties to support the child under their agreement. As the court observed in Brescia, this “is not properly brought in Family Court, because that court, lacking equity jurisdiction, is without power to set aside or modify the terms of the separation agreement” (56 NY2d, at p 139; see also, Matter of Boden v Boden, 42 NY2d 210). In any event, the seventh affirmative defense does not, in any respect, affect the support order of the Family Court or its power to direct support irrespective of any agreement (see, Matter of Brescia v Fitts, supra). The rights and obligations of the parties under the agreement are separate and distinct from those under the Family Court order. Therefore, Special Term erred in concluding that defendant was now precluded from litigating the issue in this action.
Accordingly, the order, Supreme Court, New York County (Hortense Gabel, J.), entered November 18, 1983, granting plaintiff’s motion for summary judgment dismissing the seventh affirmative defense and counterclaim, should be reversed to the extent appealed from, the motion denied and the seventh affirmative defense and counterclaim reinstated.
Kupferman, J. P., and Bloom, J., concur with Ross, J.; Kassal, J., dissents in an opinion.
Order, Supreme Court, New York County, entered on November 18, 1983, affirmed, without costs and without disbursements.