REISS v. REISS

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

Ronald REISS, appellant, v. Stella REISS, respondent.

Decided: September 26, 2005

HOWARD MILLER, J.P., BARRY A. COZIER, DAVID S. RITTER, and ROBERT A. SPOLZINO, JJ. Berman Bavero Frucco & Gouz, P.C., White Plains, N.Y. (Howard Leitner of counsel), for appellant. Kramer Kozek, LLP, White Plains, N.Y. (Georgia Kramer and Jay W. Pearlman of counsel), for respondent.

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Westchester County (Dillon, J.), dated May 27, 2004, which denied his motion to vacate the parties' post-nuptial agreement, and granted that branch of the defendant's cross motion which was to enforce that agreement only to the extent of directing the parties to submit papers on the issue of counsel fees.

ORDERED that the appeal from so much of the order as granted that branch of the defendant's cross motion which was to enforce the post-nuptial agreement to the extent of directing the parties to submit papers on the issue of counsel fees is dismissed;  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the defendant.

We dismiss the appeal from so much of the order as granted that branch of the defendant's cross motion which was to enforce the post-nuptial agreement only to the extent of directing the parties to submit papers on the issue of counsel fees.   That portion of the order did not determine the cross motion and does not affect a substantial right;  thus, it is not appealable as of right (see CPLR 5701[a][2][v];  Matter of James, 5 A.D.3d 487, 488, 772 N.Y.S.2d 558), and leave to appeal has not been granted.

The Supreme Court properly denied the plaintiff's motion to vacate the parties' post-nuptial agreement.   Viewing the challenged agreement in its entirety, and examining the totality of the circumstances in this case, we find that the agreement is not unconscionable (see Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817, 365 N.E.2d 849;  Chambers v. McIntyre, 5 A.D.3d 344, 772 N.Y.S.2d 530;  Golfinopoulos v. Golfinopoulos, 144 A.D.2d 537, 538, 534 N.Y.S.2d 407;  Juliani v. Juliani, 143 A.D.2d 72, 75, 531 N.Y.S.2d 322).

The plaintiff's remaining contention is without merit.

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