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Karen E. v. Yoram E.

Supreme Court, Appellate Division, Second Department, New York.
Nov 30, 2016
144 A.D.3d 1081 (N.Y. App. Div. 2016)

Opinion

11-30-2016

KAREN E. (Anonymous), respondent, v. YORAM E. (Anonymous), appellant.

Port & Sava, Lynbrook, NY (George S. Sava of counsel), for appellant. Coffinas & Lusthaus, P.C., Brooklyn, NY (Maria Coffinas of counsel), for respondent.


Port & Sava, Lynbrook, NY (George S. Sava of counsel), for appellant.

Coffinas & Lusthaus, P.C., Brooklyn, NY (Maria Coffinas of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and BETSY BARROS, JJ.

Appeal by the defendant from an order of the Supreme Court, Kings County (Jeffrey S. Sunshine, J.) dated December 20, 2013. The order, insofar as appealed from, denied those branches of the defendant's motion which were to set aside the parties' stipulation of settlement or, in the alternative, for a hearing as to the validity of the stipulation, and granted those branches of the plaintiff's cross motion which were to enforce certain provisions of the stipulation and to direct the defendant to pay the plaintiff the sum of $9,460 in accordance with a prior order of that court dated May 29, 2013.

ORDERED that the order dated December 20, 2013, is affirmed insofar as appealed from, with costs.

In this matrimonial action, the parties executed a written stipulation of settlement as to equitable distribution, child support, and related financial matters. Approximately two years after the execution of that stipulation, the defendant moved to set aside the stipulation or, in the alternative, for a hearing as to the validity of the stipulation, on the grounds that he had not received the effective assistance of counsel in connection with the settlement, that he signed the stipulation under duress, and that the stipulation was unconscionable.

The plaintiff cross-moved to direct the defendant to comply with the terms of the stipulation. She also sought to direct the defendant to pay her the sum of $9,460 in accordance with a prior order of the Supreme Court dated May 29, 2013.

“ ‘A separation agreement or stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability’ ” (Brennan–Duffy v. Duffy, 22 A.D.3d 699, 699, 804 N.Y.S.2d 399, quoting Linder v. Linder, 297 A.D.2d 710, 711, 747 N.Y.S.2d 396 ; see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ; Cervera v. Bressler, 85 A.D.3d 839, 841, 925 N.Y.S.2d 581 ; Sweeney v. Sweeney, 71 A.D.3d 989, 990, 898 N.Y.S.2d 560 ; Cohn v. Cohn, 15 A.D.3d 332, 788 N.Y.S.2d 865 ). “It is the party seeking to set aside the stipulation ... who has the burden of showing that the agreement was the result of fraud, duress, or overreaching, or that its terms were unconscionable” (Sweeney v. Sweeney, 71 A.D.3d at 992, 898 N.Y.S.2d 560 ; see Rubin v. Rubin, 33 A.D.3d 983, 985, 823 N.Y.S.2d 218 ; Chambers v. McIntyre, 5 A.D.3d 344, 345, 772 N.Y.S.2d 530 ).Contrary to the defendant's contention, he failed to show that the stipulation should be set aside based on ineffective assistance of counsel, or that a hearing was warranted as to that matter. “ [I]n the context of civil litigation, an attorney's errors or omissions are binding on the client and, absent extraordinary circumstances, a claim of ineffective assistance of counsel will not be entertained” (Matter of Saren v. Palma, 263 A.D.2d 544, 545, 693 N.Y.S.2d 207 ; see Matter of Rosado v. Rosado, 136 A.D.3d 927, 928, 25 N.Y.S.3d 323 ; Salvatore v. Salvatore, 68 A.D.3d 966, 967, 893 N.Y.S.2d 63 ; McVeigh v. Curry, 74 A.D.3d 915, 916, 902 N.Y.S.2d 371 ). The defendant failed to allege the existence of any extraordinary circumstances that would warrant setting aside the stipulation of settlement on the basis of ineffective assistance of counsel (see Salvatore v. Salvatore, 68 A.D.3d at 967, 893 N.Y.S.2d 63 ; see also Rubin v. Rubin, 33 A.D.3d at 985, 823 N.Y.S.2d 218 ; Brennan–Duffy v. Duffy, 22 A.D.3d 699, 804 N.Y.S.2d 399 ). Further, the defendant failed to allege facts that would establish that the defendant signed the stipulation under duress (see Rubin v. Rubin, 33 A.D.3d at 985, 823 N.Y.S.2d 218 ; Brennan–Duffy v. Duffy, 22 A.D.3d at 700, 804 N.Y.S.2d 399 ).

Moreover, the defendant failed to show that the stipulation is unconscionable, and failed to allege facts warranting a hearing as to that matter. “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 no honest and fair [person] would accept on the other’ ” (Wasserman v. Wasserman, 217 A.D.2d 544, 629 N.Y.S.2d 69, quoting Christian v. Christian, 42 N.Y.2d 63, 71, 396 N.Y.S.2d 817, 365 N.E.2d 849 ). Under the circumstances presented, the defendant failed to show that the stipulation is unconscionable and, contrary to his contention, he failed to allege any specific fraud or nondisclosure that would warrant a hearing as to that matter (see Sweeney v. Sweeney, 71 A.D.3d at 990, 898 N.Y.S.2d 560 ; Brennan–Duffy v. Duffy, 22 A.D.3d at 700, 804 N.Y.S.2d 399 ; Linder v. Linder, 297 A.D.2d at 711, 747 N.Y.S.2d 396 ).

Since there is no ground for setting aside the stipulation, the Supreme Court did not err in granting that branch of the plaintiff's cross motion which was to enforce certain provisions of the stipulation (see generally Ambrose v. Ambrose, 128 A.D.3d 746, 747, 9 N.Y.S.3d 130 ; Hanau v. Cohen, 121 A.D.3d 940, 941–942, 996 N.Y.S.2d 294 ). In addition, in view of the defendant's acknowledgment that he has not complied with so much of the order dated May 29, 2013, as directed him to pay the plaintiff the sum of $9,460, the court properly granted that branch of the plaintiff's cross motion which was to direct the defendant to pay that sum to the plaintiff in accordance with that prior order (see generally Ioppolo v. Ioppolo, 132 A.D.3d 727, 728, 18 N.Y.S.3d 639 ).


Summaries of

Karen E. v. Yoram E.

Supreme Court, Appellate Division, Second Department, New York.
Nov 30, 2016
144 A.D.3d 1081 (N.Y. App. Div. 2016)
Case details for

Karen E. v. Yoram E.

Case Details

Full title:KAREN E. (Anonymous), respondent, v. YORAM E. (Anonymous), appellant.

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

Date published: Nov 30, 2016

Citations

144 A.D.3d 1081 (N.Y. App. Div. 2016)
42 N.Y.S.3d 281
2016 N.Y. Slip Op. 8041

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