| Petrozza v Franzen |
| 2013 NY Slip Op 05739 [109 AD3d 650] |
| August 28, 2013 |
| Appellate Division, Second Department |
| John Petrozza, Appellant, v Francis Franzen et al.,Respondents. |
—[*1] Reiss Sheppe, LLP, New York, N.Y. (Howard Reiss and Robert Grand of counsel),for respondents.
In an action to rescind a settlement agreement, the plaintiff appeals from (1) an orderof the Supreme Court, Richmond County (Fusco, J.), dated May 4, 2012, which grantedthe defendants' motion for summary judgment dismissing the complaint and on theircounterclaim, and (2) a judgment of the same court dated September 10, 2012, which,upon the order, is in favor of the defendants and against the plaintiff, in effect,dismissing the complaint, and on the counterclaim in the principal sum of $2,850,000,plus prejudgment interest and administrative charges in the sum of $157,613.09, andattorneys' fees and disbursements in the sum of $43,830.51.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff commenced this action to rescind a settlement agreement he enteredinto with his now deceased wife during the course of a matrimonial action, based onalleged fraud. Specifically, the plaintiff alleges that the wife failed to inform him of, andactively concealed, her terminal cancer, which illness resulted in her death after theexecution of the settlement agreement but before the entry of a final judgment of divorce.The defendants, executors of the wife's estate, asserted a counterclaim to recoverdamages for breach of the settlement agreement.
To demonstrate fraud, a plaintiff must show that the defendant "knowingly [*2]misrepresented or concealed a material fact for the purposeof inducing [him] to rely upon it, and that [he] justifiably relied upon suchmisrepresentation or concealment to his . . . detriment" (Schwatka v Super Millwork,Inc., 106 AD3d 897, 900 [2013]; see Channel Master Corp. v AluminiumLtd. Sales, 4 NY2d 403, 406-407 [1958]). While a party's health is material to theequitable distribution of marital assets (Domestic Relations Law § 236 [B] [5] [d][2]; see e.g. Brooks vBrooks, 55 AD3d 520 [2008]), the plaintiff does not challenge the manner inwhich the parties agreed to distribute the marital assets (cf. Brodsky v Brodsky,19 AD2d 822 [1963]). Rather, the plaintiff only claims that he would not have agreed tosettle with the wife at all had he known of her condition. Contrary to the plaintiff'scontention, the wife's alleged misrepresentations or omissions concerning her health werenot material to the plaintiff's decision as to whether to enter into any settlementagreement at all with the wife and, thus, would not warrant the equitable remedy ofrescission (see generally Almap Holdings v Bank Leumi Trust Co. of N.Y., 196AD2d 518, 518-519 [1993]). To hold otherwise would be to recognize, contrary topublic policy favoring settlement and fair dealing (see Matter of Greiff, 92 NY2d341, 344 [1998]), that the plaintiff was entitled to a "fair" opportunity to stall in settlingthe action with the goal of retaining all of the marital assets upon the wife's death. Equityis not served by permitting the plaintiff to rescind the separation agreement for lack ofthis opportunity.
Furthermore, because the plaintiff does not dispute the fairness of the division of themarital assets to which the parties agreed, he will not be heard to complain that hisdecision to fairly settle the matrimonial action, in reliance upon his incorrect notion ofthe wife's good health, operated to his detriment (see generally Ricca v Ricca, 57 AD3d 868, 869 [2008] ["(aseparation) agreement will not be overturned merely because it was improvident, not themost advantageous to the dissatisfied party, or because a party had a change of heart"];Warren v Rabinowitz, 228 AD2d 492, 493 [1996]; cf. Matter of Davis,20 NY2d 70, 74 [1967]).
Accordingly, the Supreme Court properly granted that branch of the defendants'motion which was for summary judgment dismissing the complaint. Moreover, since theplaintiff's only opposition to the counterclaim was that he was entitled to rescind thesettlement agreement based upon fraud, the Supreme Court also properly granted thatbranch of the defendants' motion which was for summary judgment on theircounterclaim.
The plaintiff's further contention that the Supreme Court should have denied thedefendants' motion for summary judgment because they failed to include a complete copyof the pleadings with their motion papers is not properly before this Court, as it is raisedfor the first time on appeal (seeProvident Bank v Giannasca, 55 AD3d 812 [2008]; Marcel v Chief Energy Corp.,38 AD3d 502, 503 [2007]). Additionally, the Supreme Court properly entertainedthe defendants' motion for summary judgment, even though it was made before issue wasjoined on the counterclaim, because the parties deliberately charted a summary judgmentcourse (see Mancuso vRubin, 52 AD3d 580, 582 [2008]; Feitner v Town of Smithtown, 23 AD3d 431, 432 [2005]).Rivera, J.P., Skelos, Leventhal and Lott, JJ., concur.