PANAGGIO v. PANAGGIO

Reset A A Font size: Print

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

Frances PANAGGIO, Appellant, v. Michael PANAGGIO, Respondent.

Decided: December 31, 1998

Present:  DENMAN, P.J., PINE, PIGOTT, Jr., CALLAHAN and BOEHM, JJ. Buttarazzi Law Offices, P.C. by Maurice Verrillo, Rochester, for Plaintiff-Appellant. Biernbaum, Inclima, Meyer & Ruby by Charles Inclima, Rochester, for Defendant-Respondent.

 Supreme Court properly granted defendant's motion for a protective order.   Plaintiff failed to establish “the requisite ‘legitimate factual predicate’ for the discovery sought and there is no basis to depart from the general rule that financial disclosure is inappropriate unless and until the existing separation agreement is set aside” (Krehling v. Krehling, 190 A.D.2d 1039, 1040, 594 N.Y.S.2d 476;  see also, Fakiris v. Fakiris, 177 A.D.2d 540, 543, 575 N.Y.S.2d 924;  cf., Gilsten v. Gilsten, 137 A.D.2d 411, 413, 524 N.Y.S.2d 436).   The court also properly granted defendant's motion for summary judgment dismissing the complaint seeking rescission of the parties' 1990 stipulation on the grounds of fraud and duress.   Plaintiff was represented by competent counsel during protracted settlement negotiations and agreed to the stipulation in open court.   She accepted the benefits of the agreement for six years, and she then sought to modify the terms of the stipulation, thereby acknowledging its validity.   Although she was aware of the allegations forming the basis of her fraud claim since at least 1992, she did not commence this action to set aside the stipulation until 1996, after her application to modify the stipulation was denied.   Under those circumstances, the court properly held that plaintiff had ratified the agreement (see, McKeown v. McKeown, 237 A.D.2d 890, 654 N.Y.S.2d 549;  Reader v. Reader, 236 A.D.2d 829, 653 N.Y.S.2d 768;  Gloor v. Gloor, 190 A.D.2d 1007, 594 N.Y.S.2d 471).

Order unanimously affirmed with costs.

MEMORANDUM: