READER v. READER (1997)

Supreme Court, Appellate Division, Fourth Department, New York.

Stephen H. READER, Appellant, v. Jacqueline P. READER, Respondent.

Decided: February 07, 1997

Before GREEN, J.P., and PINE, CALLAHAN, BALIO and BOEHM, JJ.

Melvin & Melvin, LLP by Howard Woronov, Syracuse, for Appellant. Gregory I. Monashefsky, Liverpool, for Respondent.

Supreme Court erred in denying plaintiff's motion to strike defendant's counterclaim seeking partial rescission of the parties' separation agreement. Defendant's allegations of unconscionability, unfairness, fraud and duress are not substantiated by proof sufficient to justify setting aside the parties' agreement (see, Christian v. Christian, 42 N.Y.2d 63, 71-73, 396 N.Y.S.2d 817, 365 N.E.2d 849; Hunt v. Hunt [appeal No. 2], 184 A.D.2d 1010, 1011, 585 N.Y.S.2d 259). Moreover, by accepting the benefits of the agreement for 151/212 months before attempting to seek rescission, defendant is deemed to have ratified the agreement (see, Beutel v. Beutel, 55 N.Y.2d 957, 958, 449 N.Y.S.2d 180, 434 N.E.2d 249; Luce v. Luce [appeal No. 2], 213 A.D.2d 978, 978-979, 625 N.Y.S.2d 765).

Order insofar as appealed from unanimously reversed on the law without costs and motion granted.

MEMORANDUM:

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