| Sweeney v Sweeney |
| 2010 NY Slip Op 02543 [71 AD3d 989] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Donald Sweeney, Appellant-Respondent, v Tina BeverlySweeney, Respondent-Appellant. |
—[*1]
In an action for a divorce and ancillary relief, the plaintiff appeals (1) from so much of anorder of the Supreme Court, Nassau County (Driscoll, J.), dated January 15, 2009, as grantedthat branch of the defendant's motion which was to dismiss the second, third, and fourth causesof action pursuant to CPLR 3211 (a) (1), (5) and (7), and as granted those branches of thedefendant's motion which were for summary judgment on her counterclaims for a divorcepursuant to a stipulation of settlement and to enforce the stipulation, and (2) from a judgment ofdivorce of the same court entered May 5, 2009, upon the order, and the defendant cross-appealsfrom (1) so much of the order dated January 15, 2009, as denied that branch of her motion whichwas for an award of an attorney's fee, and (2) so much of the judgment as failed to award her anattorney's fee.
Ordered that the appeal and cross appeal from the order dated January 15, 2009, aredismissed; and it is further,
Ordered that the judgment entered May 5, 2009, is modified, on the law, by adding thereto aprovision awarding the defendant the reasonable attorney's fees incurred in enforcing thestipulation of settlement; as so modified, the judgment is affirmed insofar as appealed andcross-appealed from, that branch of the defendant's motion which was for an award of anattorney's fee is granted, the order dated January 15, 2009, is modified accordingly, and thematter is remitted to the Supreme Court, Nassau County, for a hearing and determination of theamount of an award of a reasonable attorney's fee, and the entry of an appropriate amendedjudgment thereafter; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal and cross appeal from the intermediate order must be dismissed because the rightof direct appeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal and cross appeal from theorder are brought up for review and have been considered on the appeal and cross appeal fromthe judgment (see CPLR [*2]5501 [a] [1]).
The plaintiff, Donald Sweeney, and the defendant, Tina Beverly Sweeney, were married inCalifornia in 1995, and have no children. The parties separated in 2003, and in 2004 they appliedfor a consent order in Australia, in which they listed the value of certain Australian property atAUD 2 million and executed a stipulation of settlement, which among other things, awarded theAustralian property to the defendant. The defendant sold the Australian property for AUD 2.8million approximately three months after executing the stipulation of settlement.
The plaintiff thereafter commenced this action for a divorce and ancillary relief on theground of constructive abandonment, and to vacate the stipulation of settlement on the groundsof fraud and overreaching. The plaintiff alleged, inter alia, that the defendant committed fraud byrepresenting that the Australian property was valued at AUD 2 million, and by selling it forAUD 2.8 million approximately three months later. The defendant counterclaimed, inter alia, fora judgment of divorce based on the stipulation of settlement and to enforce those provisions ofthe stipulation of settlement pursuant to which the plaintiff agreed to pay the defendant AUD115,176 on November 4, 2006, and transfer certain property located at 10 Bowling Green Rowin Manchester, England to her. The defendant then moved to dismiss the complaint pursuant toCPLR 3211 (a) (1), (5) and (7), arguing that the plaintiff had failed to allege sufficient groundsto have the stipulation of settlement vacated. The defendant also moved for summary judgment,inter alia, on her counterclaims for a judgment of divorce based on the stipulation of settlement,to enforce the aforementioned provisions of the stipulation of settlement, and for an award of anattorney's fee.
In the order dated January 15, 2009, the Supreme Court, inter alia, granted those branches ofthe defendant's motion which were to dismiss the second, third, and fourth causes of action, toenforce the aforementioned provisions of the stipulation of settlement, and for a judgment ofdivorce based on the stipulation of settlement, and denied that branch of the defendant's motionwhich was for an award of an attorney's fee. The judgment of divorce was entered on May 5,2009.
These appeals and cross-appeals ensued.
"It is well settled that bare legal conclusions and factual claims which are flatly contradictedby the evidence are not presumed to be true on a motion to dismiss for failure to state a cause ofaction. When the moving party offers evidentiary material, the court is required to determinewhether the proponent of the pleading has a cause of action, not whether she has stated one"(Meyer v Guinta, 262 AD2d 463, 464 [1999]; see also Ahmed v Getty PetroleumMktg., Inc., 12 AD3d 385, 385-386 [2004]; CPLR 3211 [a] [1]).
"Only where there is cause sufficient to invalidate a contract, such as fraud, collusion,mistake or accident, will a party be relieved from the consequences of a stipulation made duringlitigation" (Hallock v State of New York, 64 NY2d 224, 230 [1984]; see Cohn vCohn, 15 AD3d 332 [2005]; Strangolagalli v Strangolagalli, 295 AD2d 338 [2002];Lesesne v Lesesne, 292 AD2d 507, 508 [2002]). It is the party seeking to set aside thestipulation of settlement who has the burden of showing that the agreement was the result offraud, duress, or overreaching, or that its terms were unconscionable (see Rubin v Rubin,33 AD3d 983, 985 [2006]). "[A] party may not challenge the validity of a settlement agreementbased on a claim that [he] undervalued assets which, the record showed, were disclosed by [his]former spouse and known to [him] at the time" (Kojovic v Goldman, 35 AD3d 65, 68[2006]).
Here, the plaintiff's allegation that he reasonably relied on the defendant's allegedmisrepresentations and fraud in signing the stipulation of settlement was flatly contradicted bythe record. The stipulation of settlement states "in entering this Agreement, the [plaintiff]acknowledges that he has in no way relied upon any attorney certification of any factualsubmission or submissions, financial or otherwise, made by the [defendant's] attorney." It furtherstates that "both the [plaintiff] and the [defendant] have been fully advised with respect to thelegal, financial and practical effect of this Agreement by their respective counsel" (see e.g.DiSalvo v Graff, 227 AD2d 298 [1996]). Further, the plaintiff's conclusory claims that thedefendant misrepresented the value of the Australian property and concealed a sale or impendingsale of that property was insufficient to state a cause of action warranting the relief requested(see Cosh v Cosh, 45 AD3d 798, 800 [2007]; Kojovic v Goldman, 35 AD3d 65,71-72 [2006]). Moreover, no provision in the stipulation of settlement prohibited the defendantfrom selling the Australian property.
Contrary to the plaintiff's contention, the complaint did not seek vacatur of the stipulation ofsettlement on the ground of unconscionability (see e.g. Martin Mech. Corp. v Carlin Constr.Co., 132 AD2d 688, 690 [1987]), and therefore the issue is not properly before this Court.
The Supreme Court should have granted that branch of the defendant's motion which was foran award of an attorney's fee. Where the parties have agreed to provisions in a settlementagreement which govern the award of attorney's fees, the agreement's provisions, rather thanstatutory provisions, control (see Matter of Berns v Halberstam, 46 AD3d 808, 809[2007]; Arato v Arato, 15 AD3d 511, 512 [2005]). Here, the stipulation of settlementexpressly provided that in the event of a breach thereof by one of the parties, the non-breachingparty was entitled to an award of an attorney's fee if the non-breaching party sought itsenforcement and an order or judgment was entered in his or her favor (cf. Gottlieb vSuch, 293 AD2d 267, 267-268 [2002]). Here, the defendant successfully sought enforcementof the stipulation of settlement through a counterclaim alleging, inter alia, breach of thestipulation of settlement. Thus, the Supreme Court should have awarded the defendant areasonable attorney's fee to reimburse her for any and all expenses and costs incurred to enforcethe stipulation of settlement.
The plaintiff's remaining contentions either are without merit or need not be reached in lightof our determination. Skelos, J.P., Florio, Hall and Austin, JJ., concur.
Motion by the appellant-respondent on appeals and cross appeals from an order of theSupreme Court, Nassau County, dated January 15, 2009, and judgment of the same court enteredMay 5, 2009, to strike points II, III, and IV, and pages 6 though 18 of the respondent-appellant'sreply brief as impermissible surreply, or for leave to treat the affirmation filed in support of themotion as a surreply brief. By decision and order on motion of this Court dated November 13,2009, the motion was held in abeyance and referred to the panel of Justices hearing the appealsand cross appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers field in opposition thereto, andupon the argument of the appeals and cross appeals, it is,
Ordered that the motion is granted, and points II, III, and IV (pages 6 through 18) of therespondent-appellant's reply brief are stricken and have not been considered in the determinationof the appeals and cross appeals. Skelos, J.P., Florio, Hall and Austin, JJ., concur.