MARKOVITZ v. MARKOVITZ

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

Meir MARKOVITZ, Plaintiff-Respondent, v. Susan Diamond MARKOVITZ, Defendant-Appellant.

Decided: May 25, 2006

BUCKLEY, P.J., ANDRIAS, NARDELLI, CATTERSON, JJ. Law Offices of Dominic A. Barbara, Garden City (Judith A. Ackerman of counsel), for appellant. Tarnow & Juvelier, LLP, New York (Herman H. Tarnow of counsel), for respondent.

Order, Supreme Court, New York County (Laura Visitación-Lewis, J.), entered on or about April 22, 2005, which denied defendant's motion for a stay of proceedings, discovery and equitable distribution of marital assets, and related relief, unanimously affirmed, without costs.

 Defendant's argument that the motion court impermissibly decided an issue that was not before it, namely, the validity of the parties' separation/property settlement agreement, is improperly raised for the first time in her reply brief on appeal (see e.g. Matter of 370 Manhattan Ave. Co. v. New York State Div. of Hous. & Community Renewal, 11 A.D.3d 370, 371, 783 N.Y.S.2d 38 [2004] ).   Were we to reach the argument, we would reject it.   The parties' written submissions in the motion court were largely devoted to the validity of the agreement.   Moreover, if spouses have entered into a separation agreement, the spouse seeking discovery about the other spouse's finances must “adduce sufficient factual support constituting a legitimate basis to warrant modification or vacatur of the support provisions of the separation agreement” (Oberstein v. Oberstein, 93 A.D.2d 374, 382, 462 N.Y.S.2d 447 [1983] ).   Accordingly, defendant's request for discovery and equitable distribution of marital assets necessitated the motion court's consideration of the validity of the parties' agreement.

 A hearing was not required under the circumstances.   Defendant was represented by counsel of her choice, the parties and their lawyers negotiated the settlement agreement over several months, the agreement was not unconscionable, and the parties stated that they entered into the agreement voluntarily, without coercion or duress;  that they considered the agreement fair;  and that they waived their right to financial disclosure (see e.g. Grubman v. Grubman, 191 A.D.2d 194, 594 N.Y.S.2d 220 [1993], lv. denied 82 N.Y.2d 651, 601 N.Y.S.2d 580, 619 N.E.2d 658 [1993];  Luftig v. Luftig, 239 A.D.2d 225, 227, 657 N.Y.S.2d 658 [1997] ).   Moreover, defendant is estopped from challenging the settlement agreement by having accepted the benefits thereof (see Mahon v. Moorman, 234 A.D.2d 1, 650 N.Y.S.2d 153 [1996] ), including a home in East Hampton and payment of at least $1.7 million in cash assets.