| Cohen v Cohen |
| 2012 NY Slip Op 01870 [93 AD3d 506] |
| March 15, 2012 |
| Appellate Division, First Department |
| Stanley Cohen, Respondent, v Pauline Cohen,Appellant. |
—[*1] Leitner & Getz LLP, New York (Gregory J. Getz of counsel), for respondent.
Order, Supreme Court, New York County (Saralee Evans, J.), entered September 20, 2010,which, in this action for divorce, denied defendant's motion to vacate and declare void and/or setaside a prenuptial agreement or to set the matter down for a hearing on the circumstancessurrounding its execution, and denied her motion for an injunction with respect to certain assets,unanimously affirmed, without costs.
The motion to vacate or set aside the parties' prenuptial agreement was properly deniedwithout a hearing, as defendant failed to meet her burden of presenting evidence of fraud, duressor overreaching with respect to the agreement, which was executed in France and written indefendant's native tongue (see Stawski vStawski, 43 AD3d 776, 777 [2007]; Forsberg v Forsberg, 219 AD2d 615, 616[1995]). Defendant's contradictory affidavit and her doctor's letter do not support her suggestionthat, because of her pregnancy, she lacked the mental capacity to understand or execute theagreement. Further, plaintiff's alleged threat to cancel the wedding if defendant refused to signthe agreement does not constitute duress (Colello v Colello, 9 AD3d 855, 858 [2004], lv denied 11AD3d 1053 [2004]). Nor does the absence of legal representation establish overreaching orrequire an automatic nullification of the agreement (see id.), especially as the evidenceshows that the agreement was prepared by an independent public official unaligned with eitherparty. Plaintiff's alleged failure to fully disclose his financial situation is also insufficient tovitiate the prenuptial agreement (Strongv Dubin, 48 AD3d 232, 233 [2008]). Indeed, there is no evidence that plaintiffconcealed or misrepresented any financial information or the terms of the agreement(id.).
To the extent the prenuptial agreement, to be enforceable in New York, must contain anacknowledgment sufficient to entitle a real property deed to be recorded (see DomesticRelations Law § 236 [B] [3]), this requirement was satisfied by plaintiff's filing, at thedirection of the court, of a certificate of conformity attesting to the credentials of the Frenchofficial who drafted the agreement, and certifying that his proof of acknowledgment of theagreement conformed to the laws of France (see Real Property Law § 301-a).[*2]
There was no basis for restraining the subject assets, asdefendant failed to show that they are not owned by plaintiff separately under the terms of theprenuptial agreement (see Guttman v Guttman, 129 AD2d 537, 539 [1987]).Concur—Mazzarelli, J.P., Friedman, Richter and Abdus-Salaam, JJ.