S.G. v. N.G.

Full title: S.G., Plaintiff, v. N.G., Defendant.

Court: Supreme Court, Westchester County

Date published: Nov 1, 2017

2017 N.Y. Slip Op. 51440 (N.Y. Sup. Ct. 2017)

Opinion

53834/17

11-01-2017

S.G., Plaintiff, v. N.G., Defendant.

Patricia T. Bisesto, Esq. Attorney for Plaintiff 470 Mamaroneck Avenue, Suite 302 White Plains, New York 10605 Faith G. Miller, Esq. Miller, Zeiderman & Wiederkehr, LLP Attorneys for Defendant 140 Grand Street, Suite 503 White Plains, New York 10601

John P. Colangelo, J.

Patricia T. Bisesto, Esq. Attorney for Plaintiff 470 Mamaroneck Avenue, Suite 302 White Plains, New York 10605 Faith G. Miller, Esq. Miller, Zeiderman & Wiederkehr, LLP Attorneys for Defendant 140 Grand Street, Suite 503 White Plains, New York 10601 John P. Colangelo, J.

The following papers numbered 1 to 97 were read on Defendant's motion for an Order: invalidating the parties' Prenuptial Agreement, and staying enforcement of the Prenuptial Agreement pending the hearing and resolution of the motion; and Plaintiff's Cross-Motion seeking an Order denying Defendant's motion in its entirety, for Summary Judgment pursuant to CPLR§ 3212 declaring the Agreement to be valid and enforceable, and disqualifying Defendant's attorneys if a hearing is granted: Order to Show Cause-Affidavit of Defendant N. G. - Affirmation of Faith G. Miller, Esq. (Exhibit F), Memorandum of Law 1-47 Exhibits A-H Cross-Motion- Affidavit in Opposition of Plaintiff S. G. - Memorandum of Law 48—88 Exhibits A-F Affirmation of Faith G. Miller, Esq. in Further Support of Order to Show Cause and Opposition to Cross-Motion 89-94 Affirmation of Patricia T. Bisesto, Esq. in Reply to Cross-Motion 95-97

Upon the foregoing papers, it is ORDERED that the motion and cross-motion are disposed of as follows: Background

Plaintiff S. G. ("Plaintiff") and Defendant N. G. ("Defendant") were married on September 28, 2013 in Montawk, New York. They had been married for approximately three and one-half years at the time this matrimonial action was commenced on March 24, 2017. There are no children born of the marriage. The fulcrum of Defendant's motion and Plaintiff's cross-motion is the validity of the Prenuptial Agreement (the "Agreement") executed by the parties on September 24, 2013. Defendant has moved to set aside the Agreement on the following grounds: that she was not represented by independent counsel, that the Agreement was signed under threat and duress, and that the Agreement's terms are unconscionable or overreaching. Defendant also contends that Plaintiff failed to truthfully disclose his financial circumstances to her prior to the Agreement's execution, and that due to her physical and emotional condition, she is not and cannot be self-supporting, and without support from Plaintiff, is likely to become a public charge.

Plaintiff opposes vacatur of the Agreement, maintaining that Defendant's allegations as to the circumstances leading up to the signing of the Agreement are not only unsupported by any factual basis, but are belied by the exhibits attached to her moving papers. Accordingly, Plaintiff has cross-moved for summary judgment to declare the Agreement valid and to enforce all the terms and conditions of it. Discussion: Defendant's Motion

Defendant's Contentions With Respect to Legal Representation

The Agreement provides that the parties "each have consulted with counsel of his or her own selection and have been advised by such counsel as to the rights which would be conferred by law upon each of them in the property and income of the other by virtue of the contemplated marriage in the absence of this Agreement." (Agreement, Pl. Exh. E at page 2). Article XI of the Agreement, entitled LEGAL REPRESENTATION/ATTORNEYS' FEES also states in pertinent part that:

"(1) Each party represents that she or he has had access to adequate information concerning the financial status of the other party. Each party has sought and obtained independent legal advice from counsel of her or his own selection: [Defendant] has been represented by RITTER and RITTER, Esq., 488 Madison Avenue, Suite 1100, New York, NY 10022, and [Plaintiff] has been represented by FRANKLIN MONTGOMERY, ATTORNEYS & COUNSELORS AL LAW, 30 Vesey Street, 7th Floor, New York, New York 10007. Each party shall be solely responsible for the payment of his or her

own attorneys' fees for services rendered in connection with the negotiation, preparation and review of this Agreement."

(Agreement, Pl. Exh. E at pp. 16-17).

In the face of these mutual representations, Defendant nonetheless contends that she did not independently select Ritter & Ritter to represent her; instead, she was provided with the name and contact information for William Ritter, Esq. by Plaintiff through an email to Plaintiff from his attorney, Franklin Montgomery, Esq. that Plaintiff sent on to her. (Deft. Moving Affid., Exh.A) Defendant maintains that she neither met nor spoke to Mr. Ritter prior to the day the Agreement was signed. According to Defendant, the only conversation between her and Mr. Ritter consisted of a brief exchange in the hallway of Mr. Ritter's office on the day the Agreement was signed.Defendant further maintains that "she never received, reviewed or discussed any drafts of the Agreement - from Mr. Ritter or anyone else- prior to signing it." (Deft. Moving Affid. at ¶12).

According to Defendant, she first met Mr. Ritter in his office on September 24, 2013, four days before the scheduled wedding. Plaintiff awakened her that morning and told her that they had a meeting in the city with the lawyers later that day. They arrived at Mr. Ritter's office late, two hours after the scheduled appointment time, and she had a "few seconds, no more than a minute" to speak to Mr. Ritter in the hallway. She was told by Mr. Ritter that there was no time for a page by page review of the Agreement. (Id. at ¶¶ 3-17). During that brief encounter, Defendant learned from Mr. Ritter that contrary to what Plaintiff had previously told her, the Agreement "had almost nothing to do" with Plaintiff's father's business, but that "we didn't have time to deal with it." (Deft. Affd. ¶ 18). Defendant states that she felt blind-sided and betrayed. (Deft. Affid. ¶ 18). Through the glass doors to the conference room Defendant could see Plaintiff and his attorney waiting for her, and she entered the conference room alone; Mr. Ritter remained in the hallway. Defendant told Plaintiff and his counsel that she was could not sign the Agreement that day, that she did not understand it and needed time to read it and have it explained to her. Mr. Ritter remained in the hallway the entire time. (Deft. Moving Affid. ¶¶ 25-26). It should be noted that contrary to Defendant's insinuation, the Agreement does mention Plaintiff's interest in "Family Companies" - - businesses owned by or controlled by a "parent or sibling of S." - - and specifically provides that Plaintiff's interest in such companies would remain his separate property. (Agreement p. 14).

Plaintiff does not challenge the fact that he provided the name and contact information for Mr. Ritter, but recalls that Defendant told him that she had spoken to Mr. Ritter before the Agreement was executed. (Pl. Aff. in Opp. at ¶ 6). Moreover, as Plaintiff points out, the e-mail apprising Defendant of Mr. Ritter and his availability was not sent to her as a last minute notice, but on August 13, five weeks before the September 24 meeting. (See Deft. Affid. In Opposition, ¶ 19; e-mails annexed as Pl. Exh. A and Deft. Exh. A). In support of his claim that Defendant was represented by counsel, Plaintiff cites the billing records of his attorney Mr. Montgomery for the period leading up to the signing, which reflect eight instances in which Mr. Montgomery's firm was in contact with Mr. Ritter prior to the time the Agreement was signed. According to the billing records of Mr. Montgomery for the period leading up to the signing, contact between Plaintiff's counsel and Defendant's attorney occurred on the following eight dates in September 2013: 9/3, 9/10, 9/11, 9/12, 9/16, 9/18, 9/19 and 9/23. On seven of the eight occasions, telephone conferences took place between counsel, two of which lasted three-quarters of an hour, and the last conversation took place on the day before the Agreement was signed. (Pl. Exh. C). Plaintiff argues that the foregoing belies Defendant's claim that she was unrepresented by counsel and to the contrary, establishes Mr. Ritter's advocacy on her behalf. (Pl. Aff. in Opp. At ¶¶ 6-7).

Defendant's Contention That The Agreement was Signed under Threat and Duress

According to Defendant, after she entered the conference room, she informed Plaintiff that Mr. Ritter had advised her of the subject matter of the Agreement, and that she could not sign and would need time to review it. (Deft. Moving Affid. ¶¶25-26); Defendant was then told by Plaintiff's attorney, Franklin Montgomery, and by Plaintiff that there would be no modifications and Plaintiff's father insisted that she sign this Agreement as it was, or there would be no wedding. (Id. at ¶27).

Defendant claims that while in the conference room, she began to have a "panic attack." She asserts that for some time prior to 2013, she suffered from "panic disorder" and anxiety for which she still engages in therapy and takes psychiatric medication. (Id. at ¶¶ 40 - 43). However, no medical evidence was adduced by Defendant in the context of her motion or in her opposition to Plaintiff's cross motion. Significantly, in August and September 2013, in an effort to lose weight before the wedding, Defendant stated that she stopped taking the medication prescribed for her mental health issues and began taking diet pills. (Id. at ¶32).

Defendant contends that she was under additional stress because at the time of the conference - - albeit four days before the scheduled wedding ceremony in Montawk, New York - - many family members and guests had arrived or were en route to the wedding venue. The wedding had been planned and paid for, and Defendant maintains that she had waited more than a decade for this event, she could not imagine her life without the Plaintiff, and could not face her family and the expense of cancelling the wedding. (Id. at ¶29). Rather than follow her initial instinct, Defendant acquiesced and signed the Agreement, initialing, along with Plaintiff, each page, and acknowledging the Agreement before her attorney, Mr. Ritter.

Defendant's Claim that the Agreement's Terms are Unconscionable and Overreaching

Defendant contends that the financial terms of the Agreement are unfair and overreaching since under the Agreement, she would be deprived of spousal support and a share of Plaintiff's assets. The Agreement does provide, inter alia, that, in the event of separation or divorce, each party waives his or her the right to the other party's separate property and any appreciation thereof, as well as to any real and personal property separately acquired by a party during the marriage. (Agreement Art. III). The parties' also waive any and all claims against each other to an award of spousal maintenance, whether temporary or permanent, having represented that each of them is in good health, self sufficient and capable of being or continuing to be self-supporting. Agreement Art. (V)(1)(A) and (B). The Agreement further states that the laws of spousal maintenance have been fully explained to each party by their respective attorney. (Agreement, Art. (V)(2)).

Article VI of the Agreement governs Equitable Distribution. In lieu of equitable distribution, in the event of divorce Defendant is eligible to receive, tax free, an amount equal to $10,000 "[f]or each year of marriage or part thereof" before the commencement of a divorce action, up to a maximum of $50,000. (Agreement, p. 12). Such distribution is to be paid in an annual sum of $10,000.00, in equal quarterly installments.Since the parties are deemed to have been married for three and one-half years, under the terms of the Agreement the total amount Defendant would receive from Plaintiff in lieu of equitable distribution is $40,000.00. Defendant also waives all claims to Plaintiff's property, assets and income, regardless of any direct or indirect contribution made by her.

Defendant signed the Agreement without mention of the limitations which she asserts prevent her from returning to work and from being self-supporting. However, as Plaintiff points out, Defendant concedes that during their engagement and marriage, she worked as an aesthetician and makeup artist (Deft. Moving Affid. at ¶ 39). She nonetheless sets forth a history of physical ailments which she contends - - without medical documentation - - now prevent her from returning to work in those or other fields. Defendant also contends that aside from the physical limitations that impair her ability to return to work, she lacks the educational background to be self-supporting. Defendant thus maintains that she is incapable of being self supporting and since the Agreement provides for a complete waiver of spousal support, she fears that she will be forced to seek public support. (Id. at ¶¶46,48).

Defendant also maintains that Plaintiff's financial disclosure as set forth as Exhibit A to the Agreement is incomplete and inadequate. Defendant argues that Exhibit A - - prepared by Plaintiff's attorney - - underreports his assets and cannot be a truthful representation of his financial condition since it lacks detail concerning Plaintiff's financial condition, his income, or his interest in the G. businesses. Plaintiff's Cross-Motion

Plaintiff opposes the relief sought by Defendant in its entirety, and has filed a cross-motion seeking an Order for Summary Judgment pursuant to CPLR § 3212 declaring the Agreement to be valid and enforceable. Plaintiff principally relies upon the terms of the Agreement itself, by which both parties explicitly acknowledge the fairness of the execution process, and the enforceability of the Agreement's terms (See Pl. Reply Affrim. pp. 1-2). For example, Plaintiff refers specifically to the provision of the Agreement entitled "Voluntary Execution" which provides as follows:

"Voluntary Execution. Each party has been fully informed of his or her legal rights and obligations with respect to the subject matter of this Agreement and particularly with respect to his or her rights under the Equitable Distribution Law now in effect in the State of New York. Each party represents that he or she has carefully read this Agreement, understands its provisions, believes this Agreement to be fair and reasonable, and signs this Agreement freely and voluntarily." (Agreement Art. XV (8)).

Plaintiff also maintains that as a matter of law, Defendant has failed to adduce sufficient facts to overcome the presumption of legitimacy that attends a prenuptial agreement, a favorite of matrimonial law. (Pl. Mem. Of Law pp. 2-6; Pl. Reply Affirm. at p. 2).

For the reasons set forth herein, the Court concurs with Plaintiff. As discussed below, where, as here, an agreement is freely entered into and acknowledged as legitimate by the parties themselves, the business of the Court is generally to enforce it rather than rip it asunder. As the Court of Appeals observed in Christian v. Christian, 42 NY2d 63, 72 (1977), "courts should not intrude so as to redesign the bargain arrived at by the parties on the ground that judicial wisdom in retrospect would view one or more of the specific provisions improvident or one sided." Put another way, if parties cannot, except in the most egregious circumstances - - which, as described below, are manifestly absent here - - rely upon the sanctity of their own contractual arrangement, then, particularly in the matrimonial arena, that way madness lies. The Domestic Relations Law and case law so dictate. The Standard for Summary Judgment

CPLR § 3212 (b) provides in pertinent part that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact. (See Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957)). The burden then shifts to the opposing party who must establish the existence of material issues of fact requiring a trial (see Romano v. St. Vincent's Medical Center, 178 AD2d 467, 470 [2d Dept. 1991]. In order to grant summary judgment it must clearly appear that no material issue of fact has been presented. Hegy v. Coller, 262 AD2d 606 (2d Dept. 1999). See also Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). ("The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. . . Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers"); Ayotte v. Gervasio, 81 NY2d 1062, 1063 (1993); Finklestein v. Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000).

For the reasons set forth below, the Court concludes that Plaintiff has met his burden here while Defendant has not. Since Defendant has failed to present any material issue of fact that would compel the Court to set aside the Agreement, and Plaintiff has shown, as a matter of law and fact that it should be enforced, Defendant's motion to vacate the Agreement should be denied and Plaintiff's motion for summary judgment declaring the Agreement valid and enforceable granted. Conclusions

Defendant's claim that the Agreement should be set aside boils down to three principal contentions:

(1) That she was not adequately represented by counsel since her attorney - - Mr. Ritter - - was selected and paid for by Plaintiff and his services to her were inadequate. She maintains that Mr. Ritter did not sufficiently explain - - if he explained at all - - the terms of the Agreement, and at the crucial time of the Agreement's execution, stood idly by outside the conference room in which Plaintiff delivered an ultimatum to Defendant - - sign or the wedding is off.

(2) That the Agreement was signed under threat and duress, the threat being Plaintiff's statement to her that if she refused to sign, no wedding would occur. This threat, and the duress it allegedly engendered was, Defendant asserts, exacerbated by her fragile mental state for which she had suspended taking her prescribed medication in order to pursue a diet regimen in preparation for the wedding.

(3) That the terms of the Agreement itself are either unconscionable or a product of overreaching by Plaintiff, the monied future spouse, since, under the Agreement, separate property and its appreciation are to remain separate, no maintenance is to be received by either party and if the marriage lasts less than five years, a potential payment to Defendant is limited to $10,000 per year of marriage.

However, upon examination of the facts and circumstances as depicted by the parties and the terms of the Agreement itself, the Court concludes that each of Defendant's contentions fail to pass muster and that the Agreement should stand.

Section 236, Part B(3) of the Domestic Relations Law specifically provides for enforcement of marital agreements made both before and during the marriage. As the statute provides:

"Agreement of the parties. An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Notwithstanding any other provision of law, an acknowledgment of an agreement made before marriage may be executed before any person authorized to solemnize a marriage pursuant to subdivisions one, two and three of section eleven of this chapter. Such an agreement may include (1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article. Nothing in this subdivision shall be deemed to affect the validity of any agreement made prior to the effective date of this subdivision." (Emphasis supplied).

This section reflects the strong public policy in New York "favoring individuals ordering and deciding their own interests through contractual arrangements," Anonymous v Anonymous, 123 AD3d 581, 582 [1st Dept 2014] (quoting Matter of Greiff, 92 NY2d 341, 344 [1998]), and the guiding principle that a "prenuptial agreement is presumed to be valid and controlling unless and until the party challenging it meets his or her very high burden to set it aside." Gottlieb v. Gottlieb, 138 AD3d 30, 36 (1st Dept. 2016). "Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions." Christian v Christian, 42 NY2d 63, 71-72 [1977]. Thus, New York courts will presume that a duly executed marital agreement is valid and binding on the parties unless and until the party challenging it meets his or her very high burden to set it aside. (See Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001]); Scheinkman NY Law of Dom. Rel., Vol. 11 at 180-182).

Nonetheless, it is well-settled that "[a]n agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse". (Lombardi v. Lombardi, 127 AD3d 1038, 1041 [2d Dept 2015], quoting Bibeau v. Sudick, 122 AD3d 652, 654-655 [2d Dept. 2014]; see Matter of Fizzinoglia, 118 AD3d 994, 995 [2d Dept. 2014], lv granted 24 NY3d 908 [2014]). The burden of proof is on the party seeking to invalidate the agreement. (Weinstein v Weinstein, 36 AD3d 797 [2nd Dept 2007]; see Lombardi v. Lombardi, 235 AD2d 400 [2d Dept.1997]; Forsberg v. Forsberg 219 AD2d 615 [2d Dept. 1995]). Such an agreement may be invalidated if the party challenging it demonstrates that it was the product of fraud, duress, or other inequitable conduct (see Christian v. Christian, 42 NY2d 63, 73 (1997); Cioffi-Petrakis v. Petrakis, 103 AD3d 766, 767 (2d Dept. 2013); Petracca v. Petracca, 101 AD3d 695,699 (2d Dept. 2012).

However, in light of the sanctity typically accorded signed and acknowledged written agreements, the cases generally hold that one deficiency, standing alone, is usually an insufficient basis to void a properly executed prenuptial agreement. For example, as the Second Department held in Matter of Borabash, 84 AD3d 1363, 1364 (2d Dept. 2011), "[t]he fact that she did not have independent counsel, without more, did not constitute grounds to nullify the agreement." See also Forsberg v. Forsberg, 219 AD2d 615 (2d Dept. 1995). Similarly, a spouse's failure to disclose his or her assets as part of the agreement does not, in and of itself, serve as a basis to nullify it. Eckstein v. Eckstein, 129 AD2d 552 (2d Dept. 1987); Panossian v. Panossian, 172 AD2d 811 (2d Dept. 1991). Even lack of English language proficiency by the spouse challenging the agreement may be insufficient, without more, to override the general rule of enforceability unless such lack of proficiency is clearly shown and such spouse lacked the pertinent documents translated or explained to her. See Maines Paper and Food Service, Inc. v. Adel, 256 AD2d 760 (3d Dept. 1998); Panossian v. Panossian, 172 AD2d 811 (2d Dept. 1991). Nor is an abbreviated time period for review dispositive in and of itself. See Scheinkman, New York Law of Dom. Rel., § 6:10. Instead, it is more often a combination of factors that leads a court to consider that fraud, unconscionability or overreaching sufficient to overturn the prenuptial agreement may have been afoot.

Put simply, in the instant case, factors that would justify the extraordinary step of invalidating a prenuptial agreement are manifestly absent. As a threshold matter, neither party claims that the Agreement was not properly signed and acknowledged as DRL 236 Part B(3) commands. Moreover, the three reasons proffered by Defendant as a basis for invalidating the Agreement prove meritless.

First, the fact that the attorney for one spouse was provided and paid for by the other spouse - - the situation that obtains here - - is insufficient to void a prenuptial agreement. Indeed, even a total lack of any representation, standing alone, proves insufficient. See Barabash v. Barabash, 84 AD3d 1363 (2d Dept. 2011); ("The fact that she did not have independent counsel, without more, does not constitute grounds to nullify the agreement."); Baroras v. Baroras, 94 AD3d 551 (1st Dept. 2012); Smith v. Walsh-Smith, 66 AD3d 534 (1st Dept. 2009).

In the instant case, Defendant did have counsel - - Mr. Ritter - - made available to her, and she was advised of his availability over six weeks before the wedding date. (See August 13 e-mail, Pl. Exh. A).In addition, as Plaintiff points out and Defendant does not dispute, the attorney time sheets of Plaintiff's counsel reflect Ritter's involvement in review and revision of the Agreement on Defendant's behalf. The alleged fact that Ritter did not undertake a thorough review of the Agreement with Defendant or that he stood outside the conference room while she made the decision to sign the Agreement is of no moment in the absence of any claim that Defendant beckoned him to enter and to advise her. Moreover, Defendant's claim that Ritter was not present or failed to assist her in this time of need is contradicted by three uncontested facts: Ritter notarized both parties' signatures and the acknowledgment of the Agreement; Defendant signed the Agreement and initialed every page of it; and Defendant acknowledged by the terms of the Agreement itself that she was represented by counsel, and ably so. (See Agreement, p. 2). The Second Department case of Cioffi-Petrakis v. Petrakis, 72 AD3d 868, 869 (2d Dept. 2010) similarly rejected a challenge to a prenuptial agreement when the record revealed that her attorney signed as a witness and the wife acknowledged that the agreement was fair and equitable. As the Second Department held,

"Here, the record demonstrates that the plaintiff was represented by independent counsel during negotiations involving the parties' prenuptial agreement, that she signed the agreement, and that her counsel signed the agreement as a witness. Moreover, the agreement itself recites that the wife entered into it "freely, voluntarily and with full knowledge of all circumstances having a bearing on this agreement".

See also Barocas v. Barocas, 94 AD3d 551 (1st Dept. 2012). ("The fact that plaintiff's attorney recommended defendant's counsel, and that plaintiff paid her counsel fees, is insufficient to demonstrate duress or overreaching").

Second, Defendant's contention that she was forced by threats and duress to enter into the Agreement also rings hollow. As the case law clearly holds, the nature of the "threats" purportedly involved here - - that unless she signed, the wedding would not proceed - - even coupled with the proximity of the Agreement's execution to the planned wedding date, prove insufficient to overturn a prenuptial agreement. See, e.g., Barocas v. Barocas, 94 AD3d 551, (1st Dept. 2012) ("Defendant's claim that she believed that there would be no wedding if she did not sign the agreement, that the wedding was only two weeks away and that the wedding plans had been made, is insufficient to demonstrate duress".); Colello v. Colello, 9 AD3d 855 (4th Dept. 2004) ("[D]efendant's alleged threat to cancel the wedding if plaintiff refused to sign the agreement does not constitute duress. As a matter of law, [the] exercise or a threatened exercise of a legal right [does] not amount to duress".). Cohen v. Cohen, 93 AD2d 506 (1st Dept. 2012); See Scheinkman New York Law of Dom. Rel., § 6:10. In the end, Defendant could have simply declined to sign. However, despite reservations (see discussion supra at p. 4), she elected to proceed.

Nor does Defendant's naked claim of mental health problems advance her position since no medical evidence was adduced to demonstrate that she did not have the mental capacity to understand the Agreement or its implications. In Cohen v. Cohen, 93 AD3d 506 (1st Dept. 2012), the First Department rejected defendant's suggestion that her pregnancy inhibited her ability to understand or appreciate the terms of the agreement. As the Court held, "Defendant's contradictory affidavit and her doctor's letter do not support her suggestion that, because of her pregnancy, she lacked the capacity to understand or execute the agreement". Here, unlike Cohen, Defendant does not even proffer a doctor's note; moreover, Defendant's assertion of mental incapacity is colored by her admission that she may have created that situation herself by forgoing the medication regimen prescribed for her in favor of diet pills. (Deft. Affid. at 32).

Third, the terms of the Agreement are not unconscionable or the result of overreaching in view of the circumstances of the parties at the time the Agreement was signed. When reviewing pre or post nuptial agreements, the courts consistently take a narrow view of the doctrine of unconscionability. As the Court of Appeals noted in the leading case of Christian v. Christian, 42 NY2d 63, 71 (1977), an unconscionable agreement is one that "no person in his senses and not under delusion would make on the one hand, and no honest or fair person would accept on the other." Accordingly, whether on the grounds of unconsionability or overreaching, an agreement will not be overturned "merely because, in retrospect, some of its provisions were improvident or one-sided." Cioffi-Petrachis v. Petrachis, 72 AD3d 868, 869 (2d Dept. 2010); Golfinopolous v. Golfinopolous, 144 AD2d 537, 538 (1st Dept. 1988) ("[C]ourts will not set aside an agreement on the grounds of unconsionability simply because it might have been improvident".)

Nor will, as here, the allegation of an unequal division of assets be sufficient to nullify the prenuptial agreement, and with good reason: absent a disparity of economic resources as between the parties, a pre-nuptial agreement may never have been contemplated, much less drafted and signed. That is, the motivating factor behind any such agreement is generally preservation of the wealthier party's separate assets rather than the chimera of creating a future harmonious division of equal resources. See Cioffi-Petrachis v. Petrachis, 72 AD3d 868, 869 (2d Dept. 2010) ("[S]imply alleging an unequal division of assets is not sufficient to establish unconsionability."); Cosh v. Cosh, 45 AD3d 798, 799 (2d Dept. 2007).

In the instant case the parties clearly entered into the Agreement and the marriage with a marked disparity in financial resources, and the unstated but apparent purpose of the Agreement was the unchivalrous but legitimate goal of retaining that disparity rather then leveling the economic playing field. The manifest desire of Plaintiff, a part owner or heir to the owner of a presumably prosperous family business, to maintain the separate nature and control of that enterprise and other separate assets (see Agreement, p. 14) cannot plausibly serve as a basis of a claim of unconscionability or overreaching; rather, such a motivation - - to preserve separate assets - - is the essence of the genesis of the prenuptial concept. Perhaps for that reason, Defendant acknowledged, in the Agreement itself, the fairness of its terms. As the Agreement which Defendant signed and acknowledged states,

"Each party has been fully informed of his or her legal rights and obligations with respect to the subject matter of this Agreement and particularly with respect to his or her rights under the Equitable Distribution Law now in effect in the State of New York. Each party represents that he or she has carefully read this Agreement, understands its provisions, believes this Agreement to be fair and reasonable, and signs this Agreement freely and voluntarily."

(Agreement at p. 20).

Moreover, under the circumstances that obtain here - - evident financial disparity between the parties as claimed by Defendant, and the terms of the Agreement itself which essentially deprive Defendant of a share in Plaintiff's assets - - Defendant's contention that Plaintiff did not fully disclose the extent of his or his family's assets is of no moment. After all, under the Agreement's terms, Defendant can expect to receive no part of such assets in any event. In addition, Defendant has not asserted a claim of fraudulent inducement, nor does Defendant contend that she was unaware at the time of Plaintiff's superior financial position; indeed, her argument is to the contrary. Perhaps with such a situation of economic disparity in mind, courts have held that a failure to fully disclose a party's financial condition is not a sufficient basis to void a prenuptial agreement. See, e.g., Eckstein v. Eckstein, 129 AD2d 552, 553 (2d Dept. 1987); Gottlieb v. Gottlieb, 138 AD3d 30 (1st Dept. 2016).

In any event, in the instant case, the Agreement does in fact contain, as Exhibit A, a list of Plaintiff's assets and liabilities and Article IX of the Agreement specifically mentions Plaintiff's "Family Companies". Even assuming arguendo that Plaintiff's list is less than thorough, the Agreement specifically states that the parties "have each disclosed to the other the nature and approximate value of his or her separate assets, income and liabilities" and that "each have answered all questions posed by the other concerning his or her respective financial positions to the other's full and complete satisfaction." (Agreement, p. 2; emphasis added).

Parenthetically, the Court notes that Defendant's claim that if the Agreement stands, she might become a public charge is of no moment and wilfully ignores several salient factors. Under the Agreement's terms, she is to receive tax free, a total of $40,000 - - $10,000 per year for "each year of the marriage or part thereof." (Agreement p. 12). In view of the short term - - 3 ½ years - - nature of the marriage, should Defendant prevail and instead receive maintenance payments, the recently promulgated post-divorce maintenance guidelines call for a maintenance period of less than one year. (See DRL § 236 B(6)(f)). Moreover, Defendant is relatively young, worked before and during the marriage, and no medical evidence has been adduced to show that she could not return to the workforce now.

In short, Defendant has failed to adduce sufficient facts to sustain her burden of proving that the Agreement should be set aside. The presumption of legitimacy that hedges prenuptial agreements thus remains undisturbed in the instant case.

Accordingly, since Defendant has failed to meet her burden of demonstrating that the Agreement should be set aside, and has not adduced any material issue of fact that would prevent the enforcement of the Agreement, Defendant's motion to vacate the Agreement is denied and Plaintiff's Cross-Motion for Summary Judgment declaring the Agreement valid and enforceable is granted. Plaintiff's application to disqualify Defendant's counsel if a hearing is granted is denied as moot.

The foregoing constitutes the Decision and Order of this Court. Dated: November1, 2017 White Plains, New York ______________________________________ HONORABLE JOHN P. COLANGELO, J.S.C.