| Cioffi-Petrakis v Petrakis |
| 2010 NY Slip Op 03266 [72 AD3d 868] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Elizabeth Cioffi-Petrakis, Appellant, v Panagiotis Petrakis,Respondent. |
—[*1] Gassman, Baiamonte, Betts & Tannenbaum, P.C., Garden City, N.Y. (Stephen Gassman andCheryl Y. Mallis of counsel), for respondent.
In an action, inter alia, to set aside a prenuptial agreement, the plaintiff appeals, as limited byher brief, from so much of an order of the Supreme Court, Nassau County (Falanga, J.), datedAugust 1, 2008, as granted those branches of the defendant's motion which were for summaryjudgment dismissing the second, third, and sixth causes of action, and stated portions of theeighth and tenth causes of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
An agreement between spouses or prospective spouses which is fair on its face will beenforced according to its terms unless there is proof of fraud, duress, overreaching, orunconscionability (see Christian v Christian, 42 NY2d 63, 72-73 [1977]; Label v Label, 70 AD3d 898[2010]). "An unconscionable bargain is one which no person in his or her senses and not underdelusion would make on the one hand, and no honest and fair person would accept on the other,the inequality being so strong and manifest as to shock the conscience and confound thejudgment of any person of common sense" (Morad v Morad, 27 AD3d 626, 627 [2006]; see Christian vChristian, 42 NY2d at 71). An agreement, however, will not be overturned " 'merelybecause, in retrospect, some of its provisions were improvident or one-sided' " (Label vLabel, 70 AD3d at 899, quoting O'Lear v O'Lear, 235 AD2d 466 [1997]), andsimply alleging an unequal division of assets is not sufficient to establish unconscionability (see Cosh v Cosh, 45 AD3d 798,799 [2007]).
Here, the record demonstrates that the plaintiff was represented by independent counselduring negotiations involving the parties' prenuptial agreement, that she signed the agreement,and that her counsel signed the agreement as a witness. Moreover, the agreement itself recitesthat the wife entered into it "freely, voluntarily and with full knowledge of all circumstanceshaving a bearing on this agreement." Although the plaintiff would receive, in the event of adivorce, equitable distribution of the marital assets in an amount no greater than the sum of$25,000 per year for each full year the parties had been married, she was provided withmeaningful bargained-for benefits, including a one-third interest in one of the defendant'sbusinesses. In opposition to the [*2]defendant's prima facieshowing of his entitlement to judgment as a matter of law, the plaintiff advanced nothing butconclusory and unsubstantiated assertions insufficient to defeat a motion for summary judgment(see Piccone v Chamberlain, 271 AD2d 667 [2000]; see generally Alvarez v ProspectHosp., 68 NY2d 320, 326 [1986]). Accordingly, the Supreme Court properly granted thatbranch of the defendant's motion which was for summary judgment dismissing the sixth cause ofaction to set aside the parties' prenuptial agreement on the ground of unconscionability (see Schultz v Schultz, 58 AD3d616, 617 [2009]; Valente v Valente, 269 AD2d 389, 390 [2000]).
The plaintiff's remaining contentions are without merit (see Weinstein v Weinstein, 36 AD3d 797, 799 [2007]; Picconev Chamberlain, 271 AD2d at 667; Yedvarb v Yedvarb, 237 AD2d 433, 434 [1997];Panossian v Panossian, 172 AD2d 811 [1991]). Rivera, J.P., Angiolillo, Balkin andLeventhal, JJ., concur.