Casey and Yesawich, Jr., JJ., dissent and vote to reverse in a memorandum by Yesawich, Jr., J. Yesawich, Jr., J. (dissenting). We respectfully dissent.
The parties’ separation agreement placed a heavy financial support obligation upon defendant, which he honored for 10 months. Then, reacting to plaintiff’s decision to deny his visitation, he ceased making payments. When efforts to reconcile failed plaintiff commenced this action, initially seeking custody, support, maintenance and equitable distribution determinations. In her amended complaint, however, she sought a conversion divorce. Plaintiff asserted that she and defendant *922lived separate and apart for more than one year and that she had substantially complied with the terms and conditions of the separation agreement. She also sought to recover for damages suffered because of defendant’s alleged conversion (not found to be so by Supreme Court) of the proceeds of a second mortgage which the parties obtained on the marital residence some 10 months after the separation agreement was executed.
We are unable to agree with Supreme Court that although plaintiff may have breached the agreement, her conduct did not constitute a complete repudiation thereof. Plaintiff irrationally refused to honor defendant’s visitation rights for four months and allowed a lien to be placed on the marital residence to satisfy her legal fees in direct violation of the terms of the agreement. The fact that plaintiff at the outset sought pendente lite relief and a de novo determination of matters explicitly covered in the agreement, including support, custody and maintenance, lends further support to our conviction that she no longer considered the separation agreement as defining the parties’ obligations. As plaintiffs actions represent a material breach and manifest repudiation of the agreement, to which defendant acquiesced, it is no longer extant (see, Cavellier v Cavellier, 4 AD2d 600, 602; 2 Lindey, Separation Agreements and Antenuptial Contracts § 36.04; see generally, 2 Foster, Freed & Brandes, Law and the Family New York §§ 12:43-12:45, at 981-984 [2d ed]). And, it may not form the basis for a conversion divorce (see generally, Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C170:19, at 626; cf., Matter of Wilson, 50 NY2d 59, 66).
Accordingly, we would reverse the judgment and remit the matter to Supreme Court for further proceedings.