BRENNAN v. BRENNAN

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

Robert BRENNAN, Appellant, v. Nancy BRENNAN, Respondent.

Decided: May 19, 2003

ANITA R. FLORIO, J.P. HOWARD MILLER THOMAS A. ADAMS REINALDO and E. RIVERA, JJ. Dominic A. Barbara, Garden City, N.Y. (Dorothy M. Going of counsel), for appellant. Hirsch & Kallman, P.C., Garden City, N.Y. (Stanley Hirsch of counsel), for respondent.

In an action to rescind a separation agreement dated August 4, 1999, and, in effect, to vacate so much of a judgment of divorce dated December 2, 1999, as incorporated the terms of the agreement, the plaintiff appeals from an order of the Supreme Court, Nassau County (Ross, J.), dated April 18, 2002, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 Judicial review of separation agreements is to be exercised sparingly, with a goal of encouraging parties to settle their differences on their own (see Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817, 365 N.E.2d 849).   A party seeking to set aside a separation agreement which is fair on its face must prove fraud, duress, overreaching, or that the agreement is unconscionable (see Christian v. Christian, supra at 73, 396 N.Y.S.2d 817, 365 N.E.2d 849;  Wilson v. Neppell, 253 A.D.2d 493, 494, 677 N.Y.S.2d 144).   The defendant made a prima facie showing that the plaintiff was not entitled to have the separation agreement set aside (see Strangolagalli v. Strangolagalli, 295 A.D.2d 338, 742 N.Y.S.2d 914;  Wilson v. Neppell, supra;  Wasserman v. Wasserman, 217 A.D.2d 544, 629 N.Y.S.2d 69).   In opposition, the plaintiff failed to demonstrate the existence of a triable issue of fact, since his allegations were insufficient to create an inference of fraud, duress, overreaching, or unconscionability (see Strangolagalli v. Strangolagalli, supra;  Kammerer v. Kammerer, 278 A.D.2d 282, 717 N.Y.S.2d 322;  Wilson v. Neppell, supra at 494, 677 N.Y.S.2d 144).

 The fact that the plaintiff was not represented by independent counsel when the separation agreement was executed does not, without more, establish overreaching or require automatic nullification of the agreement (see 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 he was fully informed of his right to retain his own counsel and the defendant's attorney, who drafted the agreement, repeatedly urged him to do so (see 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).

 Moreover, since the plaintiff accepted the benefits of the parties' agreement and substantially complied with its terms for over two years, he is deemed to have ratified the agreement (see Torsiello v. Torsiello, 188 A.D.2d 523, 524, 591 N.Y.S.2d 472;  Boyle v. Burkich, 245 A.D.2d 609, 610, 665 N.Y.S.2d 104).   Contrary to the plaintiff's assertion, the child support provisions of the agreement adequately recite the language mandated by the Child Support Standards Act (Domestic Relations Law § 240[1-b][h] ) (see Gallet v. Wasserman, 280 A.D.2d 296, 722 N.Y.S.2d 226;  Blaikie v. Mortner, 274 A.D.2d 95, 713 N.Y.S.2d 148;  cf.  Lepore v. Lepore, 276 A.D.2d 677, 678, 714 N.Y.S.2d 343).   Accordingly, the defendant's motion for summary judgment was properly granted.

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