Opinion
July 3, 1995
Appeal from the Supreme Court, Kings County (Schneier, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, the Supreme Court correctly dismissed her action to rescind the financial provisions of the parties' separation agreement. A properly executed separation agreement must be enforced unless it can be shown to be unconscionable or the result of fraud or duress ( see, Christian v. Christian, 42 N.Y.2d 63). An unconscionable bargain is regarded as one "`"such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other"'" ( Christian v. Christian, supra, at 71). Here, however, the agreement, which awarded the plaintiff title to the parties' cooperative apartment and spousal maintenance until her remarriage, but which indicated that she had voluntarily waived her right to seek a share of the value of the defendant's medical license, was not so manifestly unfair on its face as to be unconscionable ( see, Gloor v. Gloor, 190 A.D.2d 1007; Torsiello v Torsiello, 188 A.D.2d 523).
Furthermore, it is well settled that "`"a party seeking to repudiate a contract procured by duress must act promptly lest he [or she] be deemed to have elected to affirm it"'" ( Stampfel v Stampfel, 170 A.D.2d 595), and thus a party who accepts the benefits provided under a separation agreement for any considerable period of time relinquishes the right to challenge that agreement ( see, e.g., Luce v. Luce, 213 A.D.2d 978; Matter of Schell v. Schell, 191 A.D.2d 570, 572; Torsiello v. Torsiello, supra, 188 A.D.2d, at 523). In the instant case, the plaintiff accepted the benefits of the separation agreement for three years before commencing this action to challenge its validity, and she has not demonstrated that her claimed incapacity continued through the three-year period during which the contract was effective and fully performed by the defendant ( see, Beutel v Beutel, 55 N.Y.2d 957), or that her failure to promptly challenge the agreement was the result of continuing duress. Under these circumstances, the court did not err in granting the defendant's motion to dismiss the complaint ( see, Stacom v. Wunsch, 162 A.D.2d 170). Bracken, J.P., Joy, Friedmann and Krausman, JJ., concur.