GURIEL v. GURIEL (2008)

In an action, inter alia, to recover damages for breach of contract, the defendant Michael Guriel appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Nelson, J.), entered March 29, 2007, as granted that branch of the plaintiff's motion which was for summary judgment directing him to comply with the terms of a settlement agreement and dismissing his affirmative defense and counterclaim, and the plaintiff cross-appeals, as limited by her brief, from so much of the same order as granted that branch of her motion which was for an attorney's fee only to the extent of awarding an attorney's fee in the sum of $15,000.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

In November 2003 the plaintiff and the defendant Michael Guriel (hereinafter the defendant) entered into a separation agreement which distributed the marital property.   The plaintiff, who had been a homemaker and only worked part time outside the home during the more than 30-year marriage, was to receive maintenance in decreasing amounts for a period of eight years.   She was to receive title to the marital residence, as well as retain her separate property, and waived any interest in the defendant's business and other real and personal property.   The defendant agreed to name the plaintiff as irrevocable beneficiary on a policy of life insurance, and to transfer to her half of his interest in a corporation in which he was a shareholder.

 An agreement which is fair on its face will be enforced according to its terms unless it is shown to be unconscionable or the product of fraud or duress (see Collison-Harrington v. Harrington, 279 A.D.2d 444, 719 N.Y.S.2d 595;  Kammerer v. Kammerer, 278 A.D.2d 282, 717 N.Y.S.2d 322).   The subject agreement appeared fair on its face, and there was no evidence of fraud or duress in connection with its production (see Fine v. Fine, 12 A.D.3d 399, 786 N.Y.S.2d 57;  Lefkowitz v. Lefkowitz, 276 A.D.2d 598, 714 N.Y.S.2d 520;  Cavalli v. Cavalli, 226 A.D.2d 666, 641 N.Y.S.2d 724).   Moreover, the agreement was not unconscionable (see Wasserman v. Wasserman, 217 A.D.2d 544, 629 N.Y.S.2d 69).

 The parties' cohabitation for eight months following the execution of the agreement did not raise an issue of fact regarding an intention to reconcile and abandon the agreement (see Strangolagalli v. Strangolagalli, 295 A.D.2d 338, 742 N.Y.S.2d 914;  Pugsley v. Pugsley, 288 A.D.2d 284, 733 N.Y.S.2d 125;  Kammerer v. Kammerer, 278 A.D.2d 282, 717 N.Y.S.2d 322;  Sepenoski v. Sepenoski, 188 A.D.2d 457, 591 N.Y.S.2d 63;  Farkas v. Farkas, 26 A.D.2d 919, 274 N.Y.S.2d 842).

In light of the defendant's breach of the separation agreement, the court properly granted the plaintiff an award of an attorney's fee (see Jaeger v. Jaeger, 260 A.D.2d 351, 687 N.Y.S.2d 689;  Friedman v. Friedman, 247 A.D.2d 430, 668 N.Y.S.2d 713).   The fee awarded was not an improvident exercise of the court's discretion.

The defendant's remaining contentions are without merit.