| Cosh v Cosh |
| 2007 NY Slip Op 09356 [45 AD3d 798] |
| November 27, 2007 |
| Appellate Division, Second Department |
| Gary Cosh, Respondent, v Diane Cosh,Appellant. |
—[*1] Victoria B. Campbell, P.C., Port Jervis, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals (1) from an order of theSupreme Court, Orange County (Rosenwasser, J.), dated April 28, 2006, which, after a hearing,denied that branch of her motion which was to set aside the parties' separation agreement, (2)from the findings of fact and conclusions of law of the same court dated April 28, 2006, and (3),as limited by her brief, from so much of a judgment of divorce of the same court, also dated April28, 2006, as incorporated the separation agreement.
Ordered that the appeal from the intermediate order is dismissed; and it is further,
Ordered that the appeal from the findings of fact and conclusions of law is dismissed, asfindings of fact and conclusions of law are not separately appealable (see Thoma v Thoma, 21 AD3d1080 [2005]; Matter of County of Westchester v O'Neill, 191 AD2d 556 [1993]);and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the immediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been [*2]considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
On October 4, 2002, after approximately 25 years of marriage, the parties executed aseparation agreement. Approximately one year later, at the behest of the defendant, they modifiedthe agreement. In December 2004 the plaintiff commenced this action for a divorce and ancillaryrelief against the defendant on the basis that the parties had been living separate and apartpursuant to the separation agreement for more than one year. On or about October 7, 2005, thedefendant, alleging that she had been a victim of domestic violence, moved, inter alia, to setaside the separation agreement on the grounds that it was unconscionable and the product offraud, duress, and overreaching.
A separation agreement which is fair on its face will not be set aside absent fraud, duress,overreaching, or unconscionability (see Christian v Christian, 42 NY2d 63, 73 [1977]; Cantilli v Cantilli, 40 AD3d 1023[2007]). An unconscionable bargain is regarded as one "such as no [person] in his [or her] sensesand not under delusion would make on the one hand, and as no honest and fair [person] wouldaccept on the other" (Christian v Christian, 42 NY2d at 71 [internal quotation marksomitted]). Here, the defendant was represented by independent counsel at all relevant times andreceived meaningful and bargained-for benefits under the agreement (see Morad v Morad, 27 AD3d 626,627 [2006]). Although the plaintiff retained property which is apparently now substantially morevaluable than it was at the time of the agreement, "courts will not set aside an agreement on theground of unconscionability simply because it might have been improvident" (Golfinopoulosv Golfinopoulos, 144 AD2d 537, 538 [1988]; see McFarland v McFarland, 70 NY2d916, 918 [1987]; Brennan-Duffy vDuffy, 22 AD3d 699, 700 [2005]; Kazimierski v Weiss, 252 AD2d 481, 482[1998]; Warren v Rabinowitz, 228 AD2d 492, 493 [1996]; Middleton v Middleton,174 AD2d 655, 656 [1991]; Gaton v Gaton, 170 AD2d 576, 577 [1991]). Indeed,"[s]imply alleging an unequal division of assets will not be sufficient" to set aside a separationagreement on the basis of unconscionability (Morand v Morand, 2 AD3d 913, 915 [2003]).
The defendant also failed to demonstrate that the agreement, which was on its face fair, wasthe result of fraud or overreaching. The defendant was fully aware of the parties' assets and,contrary to the advice of her counsel, chose to forego an independent appraisal of their realproperty and the plaintiff's business interest. Under these circumstances, the defendant's claimthat the plaintiff concealed or misstated the value of those assets lacks merit (see e.g. Kojovic v Goldman, 35 AD3d65 [2006]; Stoerchle v Stoerchle, 101 AD2d 831 [1984]; Martin v Martin, 74AD2d 419 [1980]).
Similarly, the defendant's unsubstantiated allegations of spousal abuse were insufficient todemonstrate that the agreement was procured by duress (see Korngold v Korngold, 26 AD3d 358 [2006]; Warren vRabinowitz, 228 AD2d at 492-493). Moreover, the circumstances under which theagreement was executed negate the defendant's claim (see Cappello v Cappello, 274AD2d 539 [2000]; Carosella v Carosella, 129 AD2d 547, 548 [1987]; Weinstein vWeinstein, 109 AD2d 881, 881-882 [1985]). Her claim that she signed the agreement whileunder duress is further rebutted by her acknowledgment to the contrary in the agreement itself(see Kazimierski v Weiss, 252 AD2d 481 [1998]; Carosella v Carosella, 129AD2d 547, 548 [1987]; Weinstein v Weinstein, 109 AD2d 881, 881-882 [1985]).
Furthermore, by accepting the benefits under the separation agreement for a period of threeyears, the defendant ratified the agreement since "a party seeking to repudiate a contract procuredby duress must act promptly lest he [or she] be deemed to have elected to affirm it" (Stoerchlev Stoerchle, 101 AD2d at 832; see Beutel v Beutel, 55 NY2d 957, 958 [1982]; Weissman v Weissman, 42 AD3d448 [2007]; Torsiello v Torsiello, 188 AD2d 523, 524 [1992]; Osborn v Osborn,144 AD2d [*3]350, 351 [1988]). Additionally, she has notdemonstrated that the claimed abuse "continued through the three-year period during which thecontract was effective and fully performed by the [plaintiff] or that her failure to promptlychallenge the agreement was the result of continuing duress" (Wasserman v Wasserman,217 AD2d 544, 544-545 [1995] [citation omitted]). Under these circumstances, that branchof the defendant's motion which was to set aside the separation agreement was properly denied.
The defendant's remaining contention is without merit. Spolzino, J.P., Krausman, Goldsteinand Dickerson, JJ., concur.