In a matrimonial action in which the parties were divorced by judgment dated November 15, 2001, the defendant appeals (1), as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Ambrosio, J.), dated May 3, 2004, as denied those branches of her motion which
Ordered that the appeal from so much of the order dated May 3, 2004, as denied those branches of the defendant’s motion which were to vacate the order dated December 13, 2000, and the ex parte order dated December 14, 2000, is dismissed as academic; and it is further,
Ordered that the appeal from so much of the order dated May 3, 2004, as held in abeyance that branch of the defendant’s motion which was to vacate the judgment of divorce and directed counsel to submit briefs is dismissed, as that order failed to determine that branch of the motion {see Katz v Katz, 68 AD2d 536, 542-543 [1979]); and it is further,
Ordered that the appeal from the order dated June 3, 2004, is dismissed, as that order was superseded by the order dated August 9, 2004, made upon reargument; and it is further,
Ordered that the order dated May 3, 2004, is affirmed insofar as reviewed; and it is further,
Ordered that the order dated August 9, 2004, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
Since the Supreme Court, after a hearing, issued a final order of custody and visitation dated May 26, 2005, the appeal from so much of the order dated May 3, 2004, as denied those branches of the defendant’s motion which were to vacate the order dated December 13, 2000, and the ex parte order dated
To the extent that the defendant sought to vacate the entire judgment of divorce on the ground of misconduct of an adverse party (see CPLR 5015 [a] [3]), that branch of her motion was properly denied, as she failed to meet her burden of establishing misconduct on the part of the plaintiff or his attorney sufficient to entitle her to vacatur of the judgment of divorce (see Badgett v Badgett, 2 AD3d 379 [2003]). To the extent that she sought vacatur of various provisions of the judgment of divorce on the ground that such relief was not requested in the summons with notice, that branch of her motion was also properly denied. Having accepted the benefits of the judgment by remarrying and acquiescing in it for a period of more than two years, the defendant effectively waived her right to make such a belated challenge (see Cook v Cook, 260 AD2d 160 [1999]; Bettino v Bettino, 112 AD2d 181 [1985]). In any event, the Supreme Court, in effect, vacated the custody provision of the judgment of divorce in the final order of custody and visitation dated May 26, 2005.
The Supreme Court properly denied that branch of the defendant’s motion which was to disqualify the plaintiff’s attorney on the ground that he was a material witness regarding those branches of her motion which were to vacate certain orders. The defendant failed to raise any issue of fact requiring an evidentiary hearing to resolve those branches of her motion (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437 [1987]).
The defendant’s remaining contentions are without merit. Krausman, J.P., Luciano, Spolzino and Lifson, JJ., concur.