KORNGOLD v. KORNGOLD (2006)

In an action to set aside a separation agreement dated December 13, 2000, and a stipulation of settlement dated March 15, 2002, and to vacate so much of a judgment of divorce entered September 10, 2002, as incorporated the terms of the separation agreement and the stipulation of settlement, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Falanga, J.), dated August 3, 2004, as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Judicial review of separation agreements is to be exercised sparingly, with the goal of encouraging parties to settle their differences by themselves (see Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817, 365 N.E.2d 849;  Brennan v. Brennan, 305 A.D.2d 524, 759 N.Y.S.2d 744).   A party seeking to set aside a separation agreement or a stipulation of settlement in a divorce action, each of which is fair on its face, must prove fraud, duress, or overreaching, or that the agreement or stipulation is nonetheless unconscionable (see Christian v. Christian, supra;  Brennan v. Brennan, supra;  Wilson v. Neppell, 253 A.D.2d 493, 677 N.Y.S.2d 144).   The defendant made a prima facie showing that the plaintiff was not entitled to have either the separation agreement or the stipulation of settlement set aside (see Brennan v. Brennan, supra;  Strangolagalli v. Strangolagalli, 295 A.D.2d 338, 742 N.Y.S.2d 914;  Collison-Harrington v. Harrington, 279 A.D.2d 444, 719 N.Y.S.2d 595;  Wilson v. Neppell, supra ).   In opposition, the plaintiff failed to raise a triable issue of fact, as her unsupported and conclusory allegations were insufficient as a matter of law to create any inference of fraud, duress, overreaching, or unconscionability (see Brennan v. Brennan, supra;  Strangolagalli v. Strangolagalli, supra;  Collison-Harrington v. Harrington, supra;  Wilutis v. Wilutis, 184 A.D.2d 639, 587 N.Y.S.2d 171).

 The fact that the plaintiff was not represented by independent counsel when the stipulation of settlement was placed on the record in open court does not, without more, establish overreaching or require automatic nullification of the stipulation (see Brennan v. Brennan, supra at 525, 759 N.Y.S.2d 744;  Warren v. Rabinowitz, 228 A.D.2d 492, 644 N.Y.S.2d 315).   This is especially true where, as here, the plaintiff expressly acknowledged that she was informed of her right to retain her own counsel and the defendant's attorney, who drafted the agreement, repeatedly urged her to do so (see Brennan v. Brennan, supra at 525, 759 N.Y.S.2d 744;  Nasifoglu v. Nasifoglu, 224 A.D.2d 504, 505, 637 N.Y.S.2d 792;  Wilson v. Neppell, supra at 494, 677 N.Y.S.2d 144;  cf. Kavanagh v. Kavanagh, 2 A.D.3d 688, 768 N.Y.S.2d 622).   In any event, the plaintiff was represented by independent counsel when the separation agreement was negotiated and executed, and she expressly ratified the terms of the separation agreement as part of the stipulation of settlement.   Moreover, since the plaintiff accepted the benefits of the separation agreement and substantially complied with its terms for more than one year, and thereafter accepted the benefits of the stipulation of settlement for almost one year, she ratified both the separation agreement and the stipulation of settlement by her conduct (see Brennan v. Brennan, supra at 525, 759 N.Y.S.2d 744;  Boyle v. Burkich, 245 A.D.2d 609, 610, 665 N.Y.S.2d 104;  Torsiello v. Torsiello, 188 A.D.2d 523, 524, 591 N.Y.S.2d 472).

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.