| Empie v Empie |
| 2007 NY Slip Op 09661 [46 AD3d 1008] |
| December 6, 2007 |
| Appellate Division, Third Department |
| Andrew S. Empie, Respondent, v Mary C. Empie,Appellant. |
—[*1] Higgins, Roberts, Beyerl & Coan, Schenectady (Michael Basile of counsel), forrespondent.
Cardona, P.J. Appeal from an order of the Supreme Court (Hall, J.), entered August 25, 2006in Saratoga County, which denied defendant's motion to rescind a separation agreement betweenthe parties.
After 25 years of marriage, the parties agreed to a divorce in October 2005. Thereafter, a trialwas scheduled for mid-December 2005 concerning equitable distribution of the parties' assets,the most significant of which consisted of the marital residence and a partial marital interest incommercial property neighboring the Albany County International Airport in the Town ofColonie, Albany County.
Following an October 2005 joint appraisal of the market value of the properties, the partiesnegotiated a separation agreement wherein, among other things, plaintiff waived his interest inthe marital residence—appraised at $195,000—and defendant waived her interest inthe commercial property—appraised at $315,000 (which, at that time, the parties agreedconsisted of one-half marital property and one-half plaintiff's separate property). The agreementwas executed on February 6, 2006.
Thereafter, on March 20, 2006, plaintiff sold the commercial property to Albany CountyAirport Authority for $575,000. Defendant then moved, by two orders to show cause, to, among[*2]other things, rescind the parties' separation agreementclaiming that plaintiff and his counsel failed to disclose material facts in procuring thatagreement by concealing the Airport Authority's intent to purchase the property. Defendantsought a distributive award of $65,000 which represented what she determined to be heradditional entitlement based upon the selling price received by plaintiff. She also requestedsanctions against plaintiff's counsel for the alleged fraudulent concealment. Supreme Courtdenied all the requested relief, prompting this appeal.
While a separation agreement will be more closely scrutinized by the courts than ordinarycontracts given the fiduciary relationship between husband and wife, such an agreement will notbe set aside unless there is evidence of "overreaching, fraud, duress or a bargain so inequitablethat no reasonable and competent person would have consented to it" (Curtis v Curtis, 20 AD3d 653, 654[2005]; see Rodriguez v Rodriguez,11 AD3d 768, 769 [2004]). Judicial review of such agreements should be exercisedsparingly and courts should not "redesign the bargain arrived at by the parties on the ground thatjudicial wisdom in retrospect would view one or more of the specific provisions as improvidentor one-sided" (Christian v Christian, 42 NY2d 63, 72 [1977]; see Curtis v Curtis,20 AD3d at 655).
Here, the record establishes that the parties, notably, both represented by counsel, relied onthe conclusion reached by the independent appraiser as to the market value of the respectiveproperties in entering into the separation agreement. Although defendant alleges fraud inplaintiff's failure to disclose the Airport Authority's interest in acquiring the property, albeitthrough purchase or condemnation, the record fails to establish that any definite offer wasconveyed to plaintiff until after the parties entered into the separation agreement. Under thesecircumstances, nondisclosure of any such potential interest in the commercial property, withoutmore, does not amount to fraud (see Paul v Paul, 177 AD2d 901, 902 [1991], lvdenied 79 NY2d 756 [1992]; Dayton v Dayton, 175 AD2d 427, 428 [1991], lvdenied 78 NY2d 863 [1991]). Indeed, the appraiser averred that even if he had been aware ofthe Airport Authority's interest in purchasing the property, without an offer being made, hisconclusion as to the property's fair market value would not have changed. Furthermore, we notethat defendant was aware that the Airport Authority had contacted plaintiff by mail in October2005 and she, in fact, attempted to contact the Airport Authority. Based upon our review of therecord, we cannot say that Supreme Court erred in finding defendant's allegations of fraudinsufficient to set aside the agreement.
Defendant's remaining contentions, including her request to impose sanctions againstplaintiff's counsel, have been reviewed and found to be unpersuasive.
Crew III, Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed,without costs.