| Paolino v Paolino |
| 2008 NY Slip Op 04668 [51 AD3d 886] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Linda Paolino, Appellant, v Vincent Paolino,Respondent. |
—[*1] Montalbano Condon & Frank, P.C., New City, N.Y. (David Warren of counsel), forrespondent.
In an action, inter alia, to vacate a stipulation of settlement dated August 31, 2006, whichwas incorporated, but not merged, into the parties' judgment of divorce dated December 12,2006, the plaintiff appeals from an order of the Supreme Court, Rockland County (Berliner, J.),entered November 21, 2007, which granted the defendant's motion pursuant to CPLR 3211 (a)(7) to dismiss the complaint.
Ordered that the order is affirmed, with costs.
The parties entered into a stipulation of settlement of a divorce action that had beencommenced by the plaintiff. Pursuant to the stipulation, the plaintiff waived her equitable claimto any of the defendant's specified business interests and, in exchange, received his interest in themarital residence and payment of the sum of $1,300,000. The stipulation expressly provided thatthe parties agreed to the distribution and agreed not to complete an evaluation of the businessinterest, notwithstanding that the plaintiff had retained valuation experts to place a value on thebusiness interests of the defendant. The stipulation also contained provisions reciting that it wasnot the result of any fraud, duress, or undue influence, that the parties' respective counselencouraged them to conduct the evaluation of the defendant's business interests, and that, havingbeen advised of their right to complete discovery, conduct depositions, and have the businessinterests evaluated and appraised, the parties waived those rights.[*2]
A few months after the execution of the stipulation, abusiness in which the defendant had a 19% interest was sold. The plaintiff then commenced thisaction, inter alia, to vacate the stipulation, alleging that it had been procured by actual fraud,constructive fraud, and undue influence. The defendant moved to dismiss the complaint pursuantto CPLR 3211 (a) (7), and the Supreme Court granted the motion.
"On a CPLR 3211 motion to dismiss, the court will 'accept the facts alleged in the complaintas true, accord plaintiffs the benefit of every possible favorable inference, and determine onlywhether the facts as alleged fit within any cognizable legal theory' Leon v Martinez, 84NY2d 83, 87-88 [1994]" (Nonnon vCity of New York, 9 NY3d 825, 827 [2007]). Whether the plaintiff can ultimatelyestablish the allegations is not part of the analysis (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).However, "bare legal conclusions and factual claims which are flatly contradicted by the recordare not presumed to be true" (Parola,Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 1021-1022 [2007]; see also Parsippany Constr. Co., Inc. vClark Patterson Assoc., P.C., 41 AD3d 805 [2007]).
Applying these principles here, the Supreme Court properly dismissed the complaint forfailure to state a cause of action alleging actual fraud (see Lama Holding Co. v SmithBarney, 88 NY2d 413, 421 [1996]), constructive fraud, or undue influence (seeCPLR 3016 [b]; Maas v Cornell Univ., 94 NY2d 87, 91 [1999]). The plaintiff'sconclusory claim that the defendant concealed a sale or impending sale of his business isinsufficient to state a cause of action warranting the relief requested (see Kavner v Geller, 49 AD3d 281[2008]; Cosh v Cosh, 45 AD3d798 [2007]; Kojovic vGoldman, 35 AD3d 65 [2006]). Rivera, J.P., Santucci, Eng and Chambers, JJ., concur.