| Thantu v Laifook |
| 2013 NY Slip Op 06851 [110 AD3d 983] |
| October 23, 2013 |
| Appellate Division, Second Department |
| Lorenzo Thantu, Appellant, v Martina Laifook,Respondent. (Action No. 1.) Martina Laifook, Respondent, v Lorenzo Thantu, Appellant.(Action No. 2.) |
—[*1] Harold, Salant, Strassfield & Spielberg, White Plains, N.Y. (Donna E. Abrams ofcounsel), for respondent.
In a matrimonial action in which the parties were divorced by judgment datedFebruary 1, 2011 (action No. 1), and a related action to set aside a stipulation ofsettlement dated August 17, 2010, which was incorporated but not merged into thejudgment of divorce (action No. 2), Lorenzo Thantu, the plaintiff in action No. 1 and thedefendant in action No. 2, appeals from an order of the Supreme Court, WestchesterCounty (Colangelo, J.), dated April 24, 2012, which denied his cross motion forsummary judgment dismissing the complaint in action No. 2 and, sua sponte, stayed theproceedings in action No. 1 pending the determination of the proceedings in action No. 2or until further order of the court. In a decision and order on motion dated August 17,2012, this Court granted the appellant's motion to stay enforcement of the order to theextent of staying all proceedings in action No. 2 pending hearing and determination ofthe appeal.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, sua sponte, stayed the proceedings in action No. 1 pending the determination ofthe proceedings in action No. 2 or until further order of the court is treated as anapplication for leave to appeal from that portion of the order, and leave to appeal isgranted (see CPLR 5701 [a]); and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
In 2007, the appellant commenced an action for divorce and ancillary relief (actionNo. 1). On August 17, 2010, the parties entered into a stipulation of settlement, whichwas incorporated but not merged into a judgment of divorce dated February 1, 2011.Upon the respondent's alleged failure to comply with certain provisions of the stipulationof settlement, the appellant moved, inter alia, to hold the respondent in contempt, and therespondent cross-moved for [*2]an order holding theappellant in contempt. The respondent then commenced an action to set aside thestipulation of settlement (action No. 2), inter alia, on the ground that it wasunconscionable, and the appellant cross-moved for summary judgment dismissing thecomplaint in action No. 2. The Supreme Court denied the appellant's cross motion forsummary judgment, determining that the respondent raised triable issues of fact as towhether the stipulation of settlement should be set aside as unconscionable, and it suasponte stayed the proceedings in action No. 1 pending the determination of theproceedings in action No. 2 or until further court order.
A separation agreement or stipulation of settlement should be closely scrutinized andmay be set aside upon a showing that it is unconscionable or the result of fraud, or whereit is shown to be manifestly unfair to one spouse because of overreaching on the part ofthe other spouse (see Christian v Christian, 42 NY2d 63, 72-73 [1977]; Cervera v Bressler, 85 AD3d839, 841 [2011]; Libert vLibert, 78 AD3d 790, 791-792 [2010]; Infante v Infante, 76 AD3d 1048, 1048-1049 [2010]).Here, in opposition to the appellant's establishment, prima facie, of his entitlement tojudgment as a matter of law dismissing the complaint in action No. 2, the respondentraised a triable issue of fact as to whether the stipulation of settlement should be set asideas unconscionable or manifestly unfair. Accordingly, the Supreme Court properly deniedthe appellant's cross motion for summary judgment dismissing the complaint in actionNo. 2 (see Reiner v Reiner,59 AD3d 420, 421 [2009]; cf. Libert v Libert, 78 AD3d at 792; Bright v Freeman, 24 AD3d586, 588 [2005]).
As a matter of judicial economy, the Supreme Court properly stayed the proceedingsin action No. 1 pending determination of the proceedings in action No. 2 (seeCPLR 2201; Halloran v Halloran, 161 AD2d 562, 564 [1990]). Eng, P.J.,Balkin, Lott and Roman, JJ., concur.