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

Calogero LOGIUDICE, Plaintiff-Respondent, v. Adele LOGIUDICE, Defendant-Appellant.

Decided: November 19, 2009

FRIEDMAN, J.P., MOSKOWITZ, FREEDMAN, ABDUS-SALAAM, JJ. Field Lomenzo, P.C., New York (David A. Field of counsel), for appellant. Blangiardo & Blangiardo, Cutchogue (Frank J. Blangiardo of counsel), for respondent.

Order, Supreme Court, New York County (Saralee Evans, J.), entered March 3, 2009, which denied defendant's motion to rescind a stipulation of settlement, unanimously affirmed, without costs.

 The courts “encourage[ ] property settlements through stipulation and will exercise judicial review sparingly” (Lockhart v. Lockhart, 159 A.D.2d 283, 283, 552 N.Y.S.2d 286 [1990] ).   Because of the fiduciary relationship between husband and wife, separation agreements may be set aside “under circumstances that would be insufficient to nullify an ordinary contract” (Levine v. Levine, 56 N.Y.2d 42, 47, 451 N.Y.S.2d 26, 436 N.E.2d 476 [1982] ).   Nonetheless, efforts to set aside such agreements will be subject to a “ ‘far more searching scrutiny’ ” and will be “less likely to prevail where the party had the benefit of independent representation during the negotiation and execution of the agreement” (id. at 48, 451 N.Y.S.2d 26, 436 N.E.2d 476 [citations omitted] ).

 Defendant asserts that the stipulation should be set aside on the grounds of duress, overreaching, and unconscionability.   However, the stipulation at issue was negotiated and executed by the parties' counsel, before a special referee, and in none of defendant's submissions is there any allegation that plaintiff demanded that she sign the stipulation, that he insisted on any particular financial provision, or that he made any other demand relating to the divorce proceedings.   Defendant's assertions that she lacked the mental capacity to enter into the stipulation (see Blatt v. Manhattan Med. Group, 131 A.D.2d 48, 51-52, 519 N.Y.S.2d 973 [1987] ) were not advanced below, hence are unpreserved on this appeal (Levi v. Levi, 46 A.D.3d 520, 521, 848 N.Y.S.2d 225 [2007], lv. dismissed 10 N.Y.3d 882, 860 N.Y.S.2d 478, 890 N.E.2d 240 [2008];  State of N.Y. Higher Educ. Servs. Corp. v. Sferrazza, 84 A.D.2d 874, 875, 445 N.Y.S.2d 34 [1981] ), and belied by the record.

 An unconscionable agreement is one which no person in his or her senses and not under delusion would make on the one hand, and which no honest and fair person would accept on the other (Christian v. Christian, 42 N.Y.2d 63, 71, 396 N.Y.S.2d 817, 365 N.E.2d 849 [1977];  McCaughey v. McCaughey, 205 A.D.2d 330, 331, 612 N.Y.S.2d 579 [1994] ).   The stipulation provided for defendant to receive approximately 60% of the marital assets, as well as exclusive possession of the marital residence, and made no provision for payment of maintenance.   The parties had been married for 42 years.   Plaintiff was 76 years old and had been retired for 15 years. Defendant was 61 years old and was still employed as a legal secretary.   Under these circumstances, the stipulation was not so “manifestly unjust” as to require it to be set aside as unconscionable (Santini v. Robinson, 57 A.D.3d 877, 880, 870 N.Y.S.2d 434 [2008] ).

 Likewise, because the stipulation was not unfair on its face, it should not be set aside for overreaching (see Levine, 56 N.Y.2d at 48-49, 451 N.Y.S.2d 26, 436 N.E.2d 476).   As noted, the parties were each represented by counsel during the negotiation and execution of the agreement (see id. at 48, 451 N.Y.S.2d 26, 436 N.E.2d 476).