dissent and vote to reverse in a memorandum by Levine, J. Levine, J. (dissenting). We agree with the majority that the judgment herein is not subject to vacatur on the sole fact that the stipulation was entered into without compliance with the formal requisites for discharge of defendant’s attorney of record under CPLR 321 (b) (cf. Moustakas v Bouloukos, 112 AD2d 981). Nevertheless, we are of the view that the facts averred in defendant’s motion to vacate were sufficient to require an evidentiary hearing and that, therefore, it was error for Special Term to have denied the motion on the papers alone.
Matrimonial actions are subject to strict judicial surveillance because, unlike ordinary contracts between strangers, a fiduciary relationship exists between the parties requiring the utmost of good faith (Christian v Christian, 42 NY2d 63, 72). Defendant has sworn to specific factual averments concerning representations made to him when the stipulation for a default divorce and financial settlement was entered into and regarding his own financial circumstances at the time which, if true, would establish that the judgment was obtained by extrinsic fraud and was so manifestly unfair as to raise an inference of overreaching. If thus established, these averments are sufficient to invalidate the settlement agreement (see, supra, at p 73; Mulligan v Mulligan, 98 AD2d 852, 853; Shaw v Shaw, 97 AD2d 403; Pisano v Pisano, 71 AD2d 670).
Moreover, that defendant was not independently represented when the settlement was arrived at "is a significant factor to be taken into consideration when determining whether a separation agreement was freely and fairly entered into” (Levine v Levine, 56 NY2d 42, 48). The absence of counsel for defendant was even further suspect because an attorney had formerly appeared in the action on his behalf. In dealing directly with defendant without at least obtaining informal, direct confirmation from defendant’s attorney-of-record that he was no longer in the case, plaintiffs counsel came perilously close to a violation of the canons of ethics (see, Code of Professional Responsibility, DR 7-104 [A] [1]; Moustakas v Bouloukos, supra, p 983). Under these circumstances, the recitals in the stipulation itself, relied upon heavily by the majority, cannot serve conclusively to disprove defendant’s averments, since his claim is that his entering into the stipulation was induced by fraud and overreaching. For these *916reasons, we would reverse Special Term’s order and remit for an evidentiary hearing to resolve the issues of fact raised by defendant’s motion (see, Pisano v Pisano, supra).