| Sabowitz v Sabowitz |
| 2014 NY Slip Op 08624 [123 AD3d 794] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| Harry Sabowitz, Appellant, v Ilana Sabowitz,Respondent. |
Jonathan E. Kroll & Associates, PLLC, Garden City, N.Y. (Jason L.M. Wand ofcounsel), for appellant.
Elliott S. Martin, Brooklyn, N.Y. (Benjamin M. Oxenburg of counsel), forrespondent.
In an action to set aside a stipulation of settlement, the plaintiff appeals from an orderof the Supreme Court, Kings County (Prus, J.), dated June 27, 2012, which granted thedefendant's motion for summary judgment dismissing the complaint and on hercounterclaim, and denied the plaintiff's cross motion for leave to amend the complaintand reply.
Ordered that the order is affirmed, with costs.
The parties were married in 1974. There are two children of the marriage. In January2003, the defendant commenced an action for a divorce and ancillary relief. On or aboutJanuary 30, 2003, the parties entered into a stipulation of settlement (hereinafter theStipulation), wherein the plaintiff received $100,000 from the defendant and thedefendant assumed $31,500 of the plaintiff's debt. The plaintiff waived his interest incertain real property and agreed to transfer his 50% interest in Leyte Taxi, Inc.(hereinafter Leyte Taxi), to the parties' daughters. The parties obtained a judgment ofdivorce dated June 20, 2003.
On or about September 14, 2010, the plaintiff commenced this action to set aside theStipulation, alleging fraud, duress, overreaching, and unconscionability. The defendantasserted a counterclaim seeking to enforce the term of the Stipulation relating to thetransfer of the plaintiff's interest in Leyte Taxi to the parties' daughters.
Thereafter, the defendant moved for summary judgment dismissing the complaintand on her counterclaim. The plaintiff cross-moved for leave to amend his complaint andreply. The Supreme Court granted the defendant's motion, and denied the plaintiff's crossmotion.
" 'Stipulations of settlement are favored by the courts and are not lightly setaside' " (Campione vAlberti, 98 AD3d 706, 706 [2012], quoting Bruckstein v Bruckstein,271 AD2d 389, 390 [2000]; see Hallock v State of New York, 64 NY2d 224, 230[1984]). A stipulation of settlement is an independent contract binding on the partiesunless impeached or challenged for some cause recognized by law (see Matter ofKalman v Kalman, 300 AD2d 487, 488 [2002]). "Judicial review is to be exercisedsparingly, with a goal of encouraging parties to settle their differences on their own"(Doukas v Doukas, 47 [*2]AD3d 753, 754[2008]; Brennan-Duffy vDuffy, 22 AD3d 699, 700 [2005]). " '[A] stipulation of settlement whichis fair on its face will be enforced according to its terms unless there is proof of fraud,duress, overreaching, or unconscionability' " (Rubin v Rubin, 33 AD3d 983, 984 [2006], quoting Brennan-Duffy v Duffy, 22AD3d 699, 699 [2005]).
Here, the defendant established her prima facie entitlement to judgment as a matterof law by submitting, inter alia, the Stipulation, which contained an expressrepresentation that it was not a product of fraud or duress and which awarded theplaintiff meaningful benefits, as well as her affidavit wherein she averred that the parties'attorneys were engaged in negotiations for months regarding the distribution of maritalassets (see O'Hanlon vO'Hanlon, 114 AD3d 915, 916 [2014]; Lazar v Lazar, 88 AD3d 852 [2011]; Schultz v Schultz, 58 AD3d616 [2009]; Rubin v Rubin, 33 AD3d at 984; Morad v Morad, 27 AD3d626 [2006]). Furthermore, the defendant established that the plaintiff ratified theStipulation and waived his claim to set aside the Stipulation by accepting the benefits ofthe Stipulation for a significant period of time (see Cotton v Cotton, 76 AD3d 1041, 1042 [2010]; Cosh v Cosh, 45 AD3d798, 800 [2007]; Weissmanv Weissman, 42 AD3d 448 [2007]).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff failed todemonstrate that the alleged duress continued through the period during which thecontract was effective and fully performed by the plaintiff or that his failure to promptlychallenge the agreement was the result of continuing duress (see Cosh v Cosh, 45AD3d at 801). The plaintiff's assertions of fraud, duress, overreaching, andunconscionability were conclusory and unsubstantiated, and inadequate to raise a triableissue of fact (see Lazar vLazar, 88 AD3d 852 [2011]; Rubin v Rubin, 33 AD3d at 984; seealso Morad v Morad, 27 AD3d at 627-628; Cosh v Cosh, 45 AD3d at 800).A mere unequal division of assets is insufficient to establish unconscionability (seeCosh v Cosh, 45 AD3d at 799; Morand v Morand, 2 AD3d 913, 915 [2003]).
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint and on her counterclaim.
Under the circumstances, the Supreme Court providently exercised its discretion indenying the plaintiff's cross motion for leave to amend the complaint and reply (seeCPLR 3025 [b]; Gitlin vChirinkin, 60 AD3d 901, 901-902 [2009]; Sheila Props., Inc. v A Real Good Plumber, Inc., 59 AD3d424, 426 [2009]).
The parties' remaining contentions are without merit, academic, or not properlybefore this Court. Mastro, J.P., Roman, Miller and Maltese, JJ., concur.
Motion by the respondent on an appeal from an order of the Supreme Court, KingsCounty, dated June 27, 2012, inter alia, to strike stated portions of the appellant's mainbrief on the ground that they contain or refer to matters dehors the record. By decisionand order on motion of this Court dated August 26, 2013, as amended by decision andorder on motion of this Court dated August 30, 2013, that branch of the motion wasreferred to the panel of Justices hearing the appeal for determination upon the argumentor submission thereof.
[*3] Upon the papersfiled in support of the motion and the papers filed in opposition thereto, and upon theargument of the appeal, it is
Ordered that the branch of the motion which is to strike stated portions of theappellant's brief on the ground that they refer to matter dehors the record is granted, andthose portions of the appellant's brief referring to matter dehors the record which arelisted as items "a." through "c." in paragraph 20, item "d." in paragraph 21, and theitalicized portion in paragraph 23 of the affirmation in support of the motion by Elliot S.Martin dated July 26, 2013, are deemed stricken and have not been considered on appeal.Mastro, J.P., Roman, Miller and Maltese, JJ., concur. [Prior Case History: 36 Misc3d 1222(A), 2012 NY Slip Op 51428(U).]