| Pippis v Pippis |
| 2010 NY Slip Op 00492 [69 AD3d 824] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Anthony Pippis, Appellant, v Eleni Pippis,Respondent. |
—[*1] Lorraine C. Corsa, Bronx, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals from an amended order ofthe Supreme Court, Queens County (Strauss, J.), entered January 21, 2009, which, in effect,granted that branch of the defendant's motion which was to set aside a stipulation of settlementdated August 8, 2002, as unconscionable.
Ordered that the amended order is affirmed insofar as appealed from, with costs.
"A separation agreement in a divorce proceeding may be vacated if it is manifestly unfair toone party because of the other's overreaching or where its terms are unconscionable, or thereexists fraud, collusion, mistake, or accident" (Frank v Frank, 260 AD2d 344, 345 [1999];see Christian v Christian, 42 NY2d 63 [1977]). "Separation agreements may be set aside[as unconscionable] if their terms evidence a bargain so inequitable that no reasonable andcompetent person would have consented to it" (Bright v Freeman, 24 AD3d 586, 588 [2005]; see Christian vChristian, 42 NY2d at 71; Yuda v Yuda, 143 AD2d 657, 658 [1988]). "Moreover,evidence that one attorney ostensibly represented both parties to a settlement agreement raises an'inference of overreaching on the part of the party who is the prime beneficiary of the assistanceof the attorney' " (Tuccillo v Tuccillo,8 AD3d 659, 660 [2004], quoting Bartlett v Bartlett, 84 AD2d 800, 800 [1981];see Herrington v Herrington, 56 NY2d 580, 582 [1982]; Rosenzweig v Givens, 62 AD3d1, 5 [2009], affd 13 NY3d 774 [2009]; Gilbert v Gilbert, 291 AD2d 479,480 [2002]). "Such an inference is, of course, rebuttable, if it appears that the separationagreement is fair and equitable or that both parties freely agreed to its terms with a thoroughunderstanding thereof" (Bartlett v Bartlett, 84 AD2d at 800; see Tuccillo v Tuccillo,8 AD3d at 660).
Here, it is undisputed that the defendant was not represented by counsel at any point duringthe relevant time period. According to the plaintiff, his attorney drafted the stipulation ofsettlement dated August 8, 2002 (hereinafter the stipulation), and only one attorney was presentat the signing. Under these circumstances, and where the terms of the stipulation "evidence abargain so inequitable" in favor of the plaintiff "that no reasonable and competent person" wouldhave consented to the defendant's end of the bargain (Bright v Freeman, 24 AD3d at588), an inference of overreaching on the part of the husband was raised (see Rosenzweig vGivens, 62 AD3d at 5; Tuccillo v Tuccillo, 8 AD3d at 660; Gilbert v [*2]Gilbert, 291 AD2d at 480; Bartlett v Bartlett, 84 AD2dat 800). Since the plaintiff failed to rebut the inference, the Supreme Court properly determinedthat the stipulation was the product of his overreaching, and granted the defendant's motion to setit aside.
Likewise, the Supreme Court properly rejected the plaintiff's ratification argument, since thedefendant "received virtually no benefits from the agreement and thus cannot be said to haveratified it" (Arrow v Arrow, 133 AD2d 960, 961 [1987]; see Hadi v Hadi, 34 AD3d 1153,1154 [2006]). Rivera, J.P., Miller, Leventhal and Chambers, JJ., concur.