| Reiner v Reiner |
| 2009 NY Slip Op 00669 [59 AD3d 420] |
| February 3, 2009 |
| Appellate Division, Second Department |
| David Reiner, Respondent, v Monica Reiner,Appellant. |
—[*1] Jaspan Schlesinger Hoffman LLP, Garden City, N.Y. (Lisa M. Golden and Kerri K.Grzymala of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief,from so much of an order of the Supreme Court, Suffolk County (Bivona, J.), dated June 25,2007, as granted that branch of the plaintiff's motion which was for summary judgmentdismissing her counterclaims to rescind the separation agreement.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiff's motion which was for summary judgment dismissing the defendant'scounterclaims to rescind the separation agreement is denied.
" 'A separation agreement or stipulation which is fair on its face will be enforced accordingto its terms unless there is proof of fraud, duress, overreaching, or unconscionability' " (Rubin v Rubin, 33 AD3d 983[2006], quoting Brennan-Duffy v Duffy,22 AD3d 699 [2005]). The party moving for summary judgment to dismiss acounterclaim for rescission "must make a prima facie showing that the agreement should not beset aside and, in opposition, the spouse seeking to rescind the agreement must demonstrate theexistence of a triable issue of fact sufficient to raise an inference of fraud, duress, overreaching,or unconscionability" (Rubin v Rubin, 33 AD3d at 985).
Here, the separation agreement (hereinafter the agreement) provided, inter alia: "[E]ach partyhereby represents to the other that . . . financial representations made herein are inall respects complete and truthful . . . and understands that the other party hasentered into this Agreement in reliance on such representations. Should any materialrepresentation turn out to be substantially and [*2]materiallyfalse, such party's reliance thereon in error shall be deemed sufficient reason to set aside thefinancial terms of this Agreement."
While the plaintiff demonstrated his prima facie entitlement to summary judgmentdismissing the defendant's counterclaims to rescind the separation agreement, accepting thedefendant's version of the facts as true for the purpose of this motion (see Kavanagh v Kavanagh, 2 AD3d688 [2003]; Menzel v Plotnick, 202 AD2d 558 [1994]), she raised a triable issue offact as to whether the plaintiff materially misrepresented the valuations of the marital realproperty. In particular, in opposition to the plaintiff's motion, the defendant submitted appraisalswhich indicated that said properties had been significantly undervalued by the plaintiff, a realestate broker, at the time when the parties executed the agreement.
Therefore, the defendant demonstrated that "the circumstances surrounding the execution ofthe agreement [may have been] manifestly unfair" (Kerr v Kerr, 8 AD3d 626, 627 [2004]), and also set forth a basis toset aside the agreement under the unambiguous terms of the agreement itself (see generallyMatter of Meccico v Meccico, 76 NY2d 822, 823-824 [1990]). Accordingly, the SupremeCourt should have denied that branch of the plaintiff's motion which was for summary judgmentdismissing the defendant's counterclaims to rescind the agreement (see Kerr v Kerr, 8 AD3d 626[2004]).
In view of the foregoing, we need not reach the defendant's remaining contentions. Skelos,J.P., Ritter, Santucci and Carni, JJ., concur.