LEIGHTON v. LEIGHTON (2007)

Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered April 23, 2007, which denied plaintiff husband's motion to dismiss all of defendant wife's counterclaims, and granted defendant summary judgment setting aside as invalid, the parties' 1992 postnuptial amendment to their 1986 prenuptial agreement, affirmed, without costs.

 The 1992 postnuptial agreement was invalid due to the absence of a contemporaneous acknowledgment of plaintiff's signature (see D'Elia v. D'Elia, 14 A.D.3d 477, 788 N.Y.S.2d 156 [2005];  Anonymous v. Anonymous, 253 A.D.2d 696, 677 N.Y.S.2d 573 [1998], lv. dismissed 93 N.Y.2d 888, 689 N.Y.S.2d 430, 711 N.E.2d 644 [1999] ).   We have considered plaintiff's claim concerning the applicability of the doctrines of equitable estoppel, laches, waiver and ratification, and find it without merit (see Smith v. Smith, 263 A.D.2d 628, 630, 694 N.Y.S.2d 194 [1999], lv. dismissed 94 N.Y.2d 797, 700 N.Y.S.2d 429, 722 N.E.2d 509 [1999];  Haberman v. Haberman, 216 A.D.2d 525, 527, 629 N.Y.S.2d 65 [1995];  Messina v. Messina, 143 A.D.2d 735, 533 N.Y.S.2d 298 [1988] ).

 Defendant claims that the 1986 prenuptial agreement should be set aside on the grounds, inter alia, that she did not understand it and was not given the opportunity to consult counsel before signing it.   She also claims the agreement was the result of coercion and over reaching for a number of reasons, including plaintiff's threats to cancel the wedding, her lack of understanding of legal terminology, and the fact that it was presented to her just hours before the wedding.   Plaintiff disputes these allegations and once again raises defenses of estoppel, laches, ratification and waiver.

The IAS court found that defendant “raised genuine issues of fact concerning the fairness of the circumstances under which she signed the 1986 Prenuptial Agreement” and denied summary judgment to both parties.

Summary judgment is a “drastic remedy” that should only be employed where no doubt exists as to the absence of triable issues.   The key to such procedure is issue-finding, rather than issue-determination (see Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ).   Notwithstanding the language of the agreement, defendant has raised credible questions regarding its execution.   Therefore, the IAS court properly found that neither party was entitled to summary judgment “at this stage of the action.”

Initially, I agree with the majority that the 1992 postnuptial agreement was invalid due to the absence of a contemporaneous acknowledgment of plaintiff's signature, but I respectfully dissent to the extent that I disagree with the majority's conclusion that an issue of fact exists concerning the validity of the 1986 prenuptial agreement, and would grant plaintiff-husband's motion for summary judgment dismissing the second, third, fourth and additional fourth counterclaims challenging the validity of that agreement.

It is settled that the public policy of this State favors “individuals ordering and deciding their own interests through contractual arrangements” (Matter of Greiff, 92 N.Y.2d 341, 344, 680 N.Y.S.2d 894, 703 N.E.2d 752 [1998];  see also Kessler v. Kessler, 33 A.D.3d 42, 45, 818 N.Y.S.2d 571 [2006], lv. dismissed 8 N.Y.3d 968, 836 N.Y.S.2d 540, 868 N.E.2d 221 [2007] ) and, thus, duly executed prenuptial agreements are accorded the same presumption of legality as any other contract (Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193, 738 N.Y.S.2d 650, 764 N.E.2d 950 [2001];  Kalousdian v. Kalousdian, 35 A.D.3d 669, 670, 827 N.Y.S.2d 250 [2006] ).   Moreover, a party attacking the validity of such an agreement must shoulder the heavy burden of coming forward with evidence demonstrating fraud, which will not be presumed, and which must have as its basis evidence of overreaching-the concealment of facts, misrepresentation or some other form of deception (see Darrin v. Darrin, 40 A.D.3d 1391, 1392-1393, 838 N.Y.S.2d 678 [2007], lv. dismissed 9 N.Y.3d 914, 844 N.Y.S.2d 168, 875 N.E.2d 886 [2007];  Matter of Sunshine, 51 A.D.2d 326, 328, 381 N.Y.S.2d 260 [1976], affd. 40 N.Y.2d 875, 389 N.Y.S.2d 344, 357 N.E.2d 999 [1976], see also Kojovic v. Goldman, 35 A.D.3d 65, 71, 823 N.Y.S.2d 35 [2006], lv. dismissed 8 N.Y.3d 804, 831 N.Y.S.2d 106, 863 N.E.2d 111 [2007] ) [“[t]here is a ‘heavy presumption that the deliberately prepared and executed ․ agreement manifest[s] the true intention of the parties' (Haynes v. Haynes, 200 A.D.2d 457, 606 N.Y.S.2d 631 [1994], affd. 83 N.Y.2d 954, 615 N.Y.S.2d 863, 639 N.E.2d 402 [1994] ), necessitating ‘a high order of evidence ․ to overcome that presumption’ ” (Brassey v. Brassey, 154 A.D.2d 293, 295, 546 N.Y.S.2d 370 [1989]] ).   If the spouse opposing the validity of the agreement fails to raise a triable issue of fact, the proponent of the agreement is entitled to summary judgment (Darrin, 40 A.D.3d at 1393, 838 N.Y.S.2d 678;  Tremont v. Tremont, 35 A.D.3d 1046, 1047, 827 N.Y.S.2d 309 [2006] ), and unsubstantiated and conclusory allegations are simply insufficient to raise such an issue of fact (see Rubin v. Rubin, 33 A.D.3d 983, 985-986, 823 N.Y.S.2d 218 [2006];  Korngold v. Korngold, 26 A.D.3d 358, 358-359, 810 N.Y.S.2d 206 [2006], lv. dismissed 7 N.Y.3d 861, 824 N.Y.S.2d 599, 857 N.E.2d 1131 [2006] ).   As Supreme Court's decision expressly states, the motions were decided under both CPLR 3211 and 3212, both parties having so moved.

Given the foregoing, I find that plaintiff has sustained his prima facie burden of demonstrating the validity of the 1986 prenuptial agreement through his recitation of facts that comport with the express language of the agreement.   These include the acknowledgment that defendant had ascertained and weighed all of the facts likely to influence her judgment, that all matters embodied in the agreement had been explained to her, that she had the benefit of advice of counsel of her own selection, and that plaintiff had made full disclosure of his “means and resources.”   Further, defendant's uncorroborated, conclusory allegations of fraud, overreaching and duress, raised for the first time 20 years after she executed the agreement, fail to raise a genuine, material issue of fact and are obviously feigned.

Defendant's allegation that she lacked independent counsel, while a factor to be considered in determining whether the agreement should be set aside, is not sufficient, standing alone, to overturn the agreement absent some extrinsic evidence of unconscionability, duress or fraud (see Forsberg v. Forsberg, 219 A.D.2d 615, 616, 631 N.Y.S.2d 709 [1995];  Panossian v. Panossian, 172 A.D.2d 811, 813, 569 N.Y.S.2d 182 [1991] ).   Defendant also failed to establish that plaintiff misrepresented or concealed his assets and, in any event, the failure to disclose would not alone constitute fraud or overreaching (id.).   Nor is plaintiff's purported threat to cancel the wedding if defendant refused to sign the agreement sufficient to constitute duress for, “ ‘[a]s a matter of law, [the] exercise or threatened exercise of a legal right [does] not amount to duress' ” (Colello v. Colello, 9 A.D.3d 855, 858, 780 N.Y.S.2d 450 [2004], lv. denied 11 A.D.3d 1053, 783 N.Y.S.2d 896 [2004], quoting C & H Engrs. v. Klargester, 262 A.D.2d 984, 692 N.Y.S.2d 269 [1999] ).

Finally, considering all the provisions therein, including the mutual waivers, the 1986 prenuptial agreement is manifestly not unconscionable, for it cannot be said that it was so unfair as to shock the conscience and confound the judgment of a person of common sense, or that it constituted an agreement which no person in his/her senses, and not under delusion, would make on the one hand, and that no honest and fair person would accept on the other (Lounsbury v. Lounsbury, 300 A.D.2d 812, 814, 752 N.Y.S.2d 103 [2002], citing Hume v. United States, 132 U.S. 406, 411, 10 S.Ct. 134, 33 L.Ed. 393 [1889] ).

All concur except SULLIVAN and NARDELLI, JJ. who concur in part and dissent in part in a memorandum by NARDELLI, J. as follows: