| Logiudice v Logiudice |
| 2009 NY Slip Op 08481 [67 AD3d 544] |
| November 19, 2009 |
| Appellate Division, First Department |
| Calogero Logiudice, Respondent, v Adele Logiudice,Appellant. |
—[*1] Blangiardo & Blangiardo, Cutchogue (Frank J. Blangiardo of counsel), forrespondent.
Order, Supreme Court, New York County (Saralee Evans, J.), entered March 3, 2009, whichdenied defendant's motion to rescind a stipulation of settlement, unanimously affirmed, withoutcosts.
The courts "encourage[ ] property settlements through stipulation and will exercise judicialreview sparingly" (Lockhart v Lockhart, 159 AD2d 283 [1990]). Because of thefiduciary relationship between husband and wife, separation agreements may be set aside "undercircumstances that would be insufficient to nullify an ordinary contract" (Levine vLevine, 56 NY2d 42, 47 [1982]). Nonetheless, efforts to set aside such agreements will besubject to a " 'far more searching scrutiny' " and will be "less likely to prevail where the partyhad the benefit of independent representation during the negotiation and execution of theagreement" (id. at 48 [citations omitted]).
Defendant asserts that the stipulation should be set aside on the grounds of duress,overreaching, and unconscionability. However, the stipulation at issue was negotiated andexecuted by the parties' counsel, before a special referee, and in none of defendant's submissionsis there any allegation that plaintiff demanded that she sign the stipulation, that he insisted onany particular financial provision, or that he made any other demand relating to the divorceproceedings. Defendant's assertions that she lacked the mental capacity to enter into thestipulation (see Blatt v Manhattan Med. Group, 131 AD2d 48, 51-52 [1987]) were notadvanced below, hence are unpreserved on this appeal (Levi v Levi, 46 AD3d 520, 521 [2007], lv dismissed 10NY3d 882 [2008]; State of N.Y. Higher Educ. Servs. Corp. v Sferrazza, 84 AD2d 874,875 [1981]), and belied by the record.
An unconscionable agreement is one which no person in his or her senses and not underdelusion would make on the one hand, and which no honest and fair person would accept on theother (Christian v Christian, 42 NY2d 63, 71 [1977]; McCaughey v McCaughey,205 AD2d 330, 331 [1994]). The stipulation provided for defendant to receive approximately60% of the marital assets, as well as exclusive possession of the marital residence, and made noprovision for payment of maintenance. The parties had been married for 42 years. Plaintiff was76 years old and had been retired for 15 years. Defendant was 61 years old and was stillemployed as a legal secretary. Under these circumstances, the stipulation was not so "manifestlyunjust" as to require [*2]it to be set aside as unconscionable (Santini v Robinson, 57 AD3d 877,880 [2008]).
Likewise, because the stipulation was not unfair on its face, it should not be set aside foroverreaching (see Levine, 56 NY2d at 48-49). As noted, the parties were eachrepresented by counsel during the negotiation and execution of the agreement (see id. at48). Concur—Friedman, J.P., Moskowitz, Freedman and Abdus-Salaam, JJ.