GENOVESE v. GENOVESE

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

Joseph G. GENOVESE, Appellant, v. Martha GENOVESE, Respondent.

Decided: October 27, 1997

Before MANGANO, P.J., and COPERTINO, JOY, FLORIO and LUCIANO, JJ. Polizzotto & Polizzotto, Brooklyn (Alfred Polizzotto and Bonnie Bernstein, of counsel), for appellant. Edelstein & Brown, Brooklyn (Saul Edelstein, of counsel), for respondent.

In an action for a divorce and ancillary relief, the plaintiff husband appeals from an order of the Supreme Court, Kings County (Rigler, J.), dated November 22, 1996, which (1) granted the defendant wife's motion for leave to amend her answer to include a counterclaim to set aside the parties' separation agreement, and (2) denied his cross motion for summary judgment on his action for a divorce and ancillary relief based upon the parties' separation agreement.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the cross motion for summary judgment is granted.

The defendant seeks to set aside the separation agreement because, inter alia, at the time of the execution of the agreement, she was emotionally upset and “had been under treatment for alcohol dependency”, and she had not been provided with full disclosure of the plaintiff's income and assets.

The defendant acquiesced in the agreement, accepted benefits under it for nearly four years, and sought to set it aside only after the plaintiff instituted this action for a divorce and ancillary relief.   Under the circumstances, she ratified the agreement (see, Beutel v. Beutel, 55 N.Y.2d 957, 958, 449 N.Y.S.2d 180, 434 N.E.2d 249;  Cordero v. Cordero, 135 A.D.2d 483, 521 N.Y.S.2d 724).   Moreover, pursuant to the agreement, the parties had been advised of their right to seek financial discovery and had chosen to waive such discovery.

The plaintiff made a prima facie showing of entitlement to a judgment of divorce as a matter of law pursuant to Domestic Relations Law § 170(6) (see, Towner v. Towner, 225 A.D.2d 614, 639 N.Y.S.2d 133).   The defendant has failed to raise any material issue as to whether the plaintiff substantially complied with the terms of the separation agreement.

MEMORANDUM BY THE COURT.

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