| Ricca v Ricca |
| 2008 NY Slip Op 10145 [57 AD3d 868] |
| December 23, 2008 |
| Appellate Division, Second Department |
| William L. Ricca, Appellant, v Grace Ann M. Ricca,Respondent. |
—[*1] Philip J. Castrovinci, P.C., Smithtown, N.Y. (Ruth Sovronsky of counsel), forrespondent.
In an action to set aside a stipulation of settlement dated February 15, 2002 and, in effect, tovacate so much of a judgment of divorce entered September 17, 2002 as incorporated the terms of thestipulation of settlement, the plaintiff appeals, as limited by his brief, from so much of an order of theSupreme Court, Suffolk County (Mayer, J.), entered April 16, 2007, as granted that branch of thedefendant's motion which was for summary judgment dismissing the complaint and denied that branchof his cross motion which was for summary judgment setting aside the child support provisions of thestipulation of settlement.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's assertion, the child support provisions of the stipulation of settlementadequately recite the language mandated by the Child Support Standards Act (see DomesticRelations Law § 240 [1-b] [h]; Brennan v Brennan, 305 AD2d 524, 524-525 [2003];Gallet v Wasserman, 280 AD2d 296, 297 [2001]; cf. Lepore v Lepore, 276 AD2d677, 678 [2000]).
"Judicial review of separation agreements is to be exercised sparingly, with a goal of encouragingparties to settle their differences on their own (see Christian v Christian, 42 NY2d 63 [1977]).A party seeking to set aside a separation agreement which is fair on its face must prove fraud, duress,overreaching, or that the agreement is unconscionable . . . (see Strangolagalli vStrangolagalli, 295 AD2d 338 [2002])" (Brennan v Brennan, 305 AD2d at 524-525[citations omitted]). "Such an [*2]agreement will not be overturnedmerely because it was improvident, not the most advantageous to the dissatisfied party, or because aparty had a change of heart" (Warren v Rabinowitz, 228 AD2d 492, 493 [1996]).
The defendant made a prima facie showing that the plaintiff was not entitled to have the stipulationof settlement set aside (see Korngold vKorngold, 26 AD3d 358 [2006]; Brennan v Brennan, 305 AD2d at 524-525;Strangolagalli v Strangolagalli, 295 AD2d 338 [2002]). In opposition, the plaintiff failed toraise a triable issue of fact, as his unsupported and conclusory allegations were insufficient as a matterof law to create any inference of fraud, overreaching, or unconscionability (see Korngold v Korngold, 26 AD3d358 [2006]; Brennan v Brennan, 305 AD2d at 524-525). "The fact that the plaintiff wasnot represented by independent counsel when the separation agreement was executed does not,without more, establish overreaching or require automatic nullification of the agreement (Warren vRabinowitz, 228 AD2d 492 [1996])" (Brennan v Brennan, 305 AD2d at 525; seeKorngold v Korngold, 26 AD3d at 359). This is especially true where, as here, the plaintiff knewthat the defendant had benefitted from consulting with counsel during the negotiation process, wasinformed of his right to retain his own counsel, and the parties' mediator, who drafted the agreement,repeatedly urged him to do so (see Korngold v Korngold, 26 AD3d at 359).
In any event, since the plaintiff accepted the benefits of the stipulation of settlement, andsubstantially complied with its terms for almost two years, he ratified the stipulation by his conduct(see Korngold v Korngold, 26 AD3d at 359; Brennan v Brennan, 305 AD2d at 525).
Accordingly, the Supreme Court properly granted that branch of the defendant's motion which wasfor summary judgment dismissing the complaint, and properly denied that branch of the plaintiff's crossmotion which was for summary judgment setting aside the child support provisions of the stipulation ofsettlement. Mastro, J.P., Florio, Eng and Chambers, JJ., concur.