| Leighton v Leighton |
| 2007 NY Slip Op 09667 [46 AD3d 264] |
| December 6, 2007 |
| Appellate Division, First Department |
| Jan Leighton, Appellant, v Young Ja Kim Leighton,Respondent. |
—[*1] Lisa Fischel-Wolovick, New York City, for respondent.
Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered April 23,2007, which denied plaintiff husband's motion to dismiss all of defendant wife's counterclaims,and granted defendant summary judgment setting aside as invalid, the parties' 1992 postnuptialamendment to their 1986 prenuptial agreement, affirmed, without costs.
The 1992 postnuptial agreement was invalid due to the absence of a contemporaneousacknowledgment of plaintiff's signature (see D'Elia v D'Elia, 14 AD3d 477 [2005]; Anonymous vAnonymous, 253 AD2d 696 [1998], lv dismissed 93 NY2d 888 [1999]). We haveconsidered plaintiff's claim concerning the applicability of the doctrines of equitable estoppel,laches, waiver and ratification, and find it without merit (see Smith v Smith, 263 AD2d628, 630 [1999], lv dismissed 94 NY2d 797 [1999]; Haberman v Haberman, 216AD2d 525, 527 [1995]; Messina v Messina, 143 AD2d 735 [1988]).
Defendant claims that the 1986 prenuptial agreement should be set aside on the grounds,inter alia, that she did not understand it and was not given the opportunity to consult counselbefore signing it. She also claims the agreement was the result of coercion and overreaching for anumber of reasons, including plaintiff's threats to cancel the wedding, her lack of understandingof legal terminology, and the fact that it was presented to her just hours before the wedding.Plaintiff disputes these allegations and once again raises defenses of estoppel, laches, ratificationand waiver.
The IAS court found that defendant "raised genuine issues of fact concerning the fairness ofthe circumstances under which she signed the 1986 Prenuptial Agreement" and denied summaryjudgment to both parties.
Summary judgment is a "drastic remedy" that should only be employed where no doubtexists as to the absence of triable issues. The key to such procedure is issue-finding, rather thanissue-determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404[1957]). Notwithstanding the language of the agreement, defendant has raised credible questionsregarding its execution. Therefore, the IAS court properly found that neither party was entitled tosummary judgment "at this stage of the action." Concur—Lippman, P.J., Mazzarelli andSweeny, JJ.[*2]
Sullivan and Nardelli, JJ., concur in part and dissent inpart in a memorandum by Nardelli, J., as follows: Initially, I agree with the majority that the 1992postnuptial agreement was invalid due to the absence of a contemporaneous acknowledgment ofplaintiff's signature, but I respectfully dissent to the extent that I disagree with the majority'sconclusion that an issue of fact exists concerning the validity of the 1986 prenuptial agreement,and would grant plaintiff husband's motion for summary judgment dismissing the second, third,fourth and additional fourth counterclaims challenging the validity of that agreement.
It is settled that the public policy of this State favors "individuals ordering and deciding theirown interests through contractual arrangements" (Matter of Greiff, 92 NY2d 341, 344[1998]; see also Kessler v Kessler,33 AD3d 42, 45 [2006], lv dismissed 8 NY3d 968 [2007]) and, thus, duly executedprenuptial agreements are accorded the same presumption of legality as any other contract(Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001]; Kalousdian v Kalousdian, 35 AD3d669, 670 [2006]). Moreover, a party attacking the validity of such an agreement mustshoulder the heavy burden of coming forward with evidence demonstrating fraud, which will notbe presumed, and which must have as its basis evidence of overreaching—the concealmentof facts, misrepresentation or some other form of deception (see Darrin v Darrin, 40 AD3d 1391, 1392-1393 [2007], lvdismissed 9 NY3d 914 [2007]; Matter of Sunshine, 51 AD2d 326, 328 [1976],affd 40 NY2d 875 [1976], seealso Kojovic v Goldman, 35 AD3d 65, 71 [2006], lv dismissed 8 NY3d 804[2007] ["(t)here is a 'heavy presumption that the deliberately prepared and executed. . . agreement manifest(s) the true intention of the parties' (Haynes vHaynes, 200 AD2d 457, 457 [1994], affd 83 NY2d 954 [1994]), necessitating 'a highorder of evidence . . . to overcome that presumption' (Brassey v Brassey,154 AD2d 293, 295 [1989])"]). If the spouse opposing the validity of the agreement fails to raisea triable issue of fact, the proponent of the agreement is entitled to summary judgment(Darrin, 40 AD3d at 1393; Tremont v Tremont, 35 AD3d 1046, 1047 [2006]), andunsubstantiated and conclusory allegations are simply insufficient to raise such an issue of fact(see Rubin v Rubin, 33 AD3d983, 985-986 [2006]; Korngold vKorngold, 26 AD3d 358, 358-359 [2006], lv dismissed 7 NY3d 861 [2006]). AsSupreme Court's decision expressly states, the motions were decided under both CPLR 3211 and3212, both parties having so moved.
Given the foregoing, I find that plaintiff has sustained his prima facie burden ofdemonstrating the validity of the 1986 prenuptial agreement through his recitation of facts thatcomport with the express language of the agreement. These include the acknowledgment thatdefendant had ascertained and weighed all of the facts likely to influence her judgment, that allmatters embodied in the agreement had been explained to her, that she had the benefit of adviceof counsel of her own selection, and that plaintiff had made full disclosure of his "means andresources." Further, defendant's uncorroborated, conclusory allegations of fraud, overreachingand duress, raised for the first time 20 years after she executed the agreement, fail to raise agenuine, material issue of fact and are obviously feigned.
Defendant's allegation that she lacked independent counsel, while a factor to be considered indetermining whether the agreement should be set aside, is not sufficient, standing alone, tooverturn the agreement absent some extrinsic evidence of unconscionability, duress or [*3]fraud (see Forsberg v Forsberg, 219 AD2d 615, 616 [1995];Panossian v Panossian, 172 AD2d 811, 813 [1991]). Defendant also failed to establishthat plaintiff misrepresented or concealed his assets and, in any event, the failure to disclosewould not alone constitute fraud or overreaching (id.). Nor is plaintiff's purported threatto cancel the wedding if defendant refused to sign the agreement sufficient to constitute duressfor, " '[a]s a matter of law, [the] exercise or threatened exercise of a legal right [does] not amountto duress' " (Colello v Colello, 9AD3d 855, 858 [2004], lv denied 11 AD3d 1053 [2004], quoting C & H Engrs. vKlargester, Inc., 262 AD2d 984, 984 [1999]).
Finally, considering all the provisions therein, including the mutual waivers, the 1986prenuptial agreement is manifestly not unconscionable, for it cannot be said that it was so unfairas to shock the conscience and confound the judgment of a person of common sense, or that itconstituted an agreement which no person in his/her senses, and not under delusion, would makeon the one hand, and that no honest and fair person would accept on the other (Lounsbury vLounsbury, 300 AD2d 812, 814 [2002], citing Hume v United States, 132 US 406,411 [1889]).