Cohen v. Cohen

• Decision Date: 20 March 2019
• Docket Number: Index No. 201481/12,2017-06077
• Citation: Cohen v. Cohen, 170 A.D.3d 948, 96 N.Y.S.3d 312 (N.Y. App. Div. 2019)
• Parties: Michael A. COHEN, Respondent, v. Idit COHEN, Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 948

96 N.Y.S.3d 312

Michael A. COHEN, Respondent,

v.Idit COHEN, Appellant.

2017-06077

Index No. 201481/12

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

Submitted—November 29, 2018

March 20, 2019

Meir Moza (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Joel A. Sweetbaum ], of counsel), for appellant.

Richard L. Yellen & Associates, LLP, New York, N.Y. (Brendan C. Kombol of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.

DECISION & ORDER

In a matrimonial action, the defendant appeals from an order of the Supreme Court, Nassau County (Jeffrey A. Goodstein, J.), dated May 19, 2017. The order, insofar as appealed from, denied those branches of the defendant's motion which were to vacate certain provisions of the parties' judgment of divorce and stipulation of settlement.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The parties were divorced by judgment of divorce dated September 29, 2014. A stipulation of settlement incorporated but not merged into the judgment of divorce provided, in relevant part, that the plaintiff "may have an ownership interest" in real property located at 319 Serena Road in Hewlett (hereinafter the Hewlett property) "and that [the defendant] waives any right or interest thereto." By notice of motion dated January 13, 2017, the defendant moved, inter alia, to vacate so much of the judgment of divorce and stipulation of settlement as provided that she waived equitable distribution of the plaintiff's ownership interest in the Hewlett property on the ground that the plaintiff failed to disclose his ownership interest in that property prior to entry of the judgment of divorce. By order dated May 19, 2017, the Supreme Court denied the defendant's motion without a hearing. The defendant appeals from so much of the order as denied the aforementioned branches of her motion.

We agree with the Supreme Court's determination denying those branches of the defendant's motion which were to vacate so much of the judgment of divorce and stipulation of settlement as provided that she waived equitable distribution of the plaintiff's ownership interest in the Hewlett property. " ‘Marital settlement agreements are judicially favored and are not to be easily set aside’ " ( Glover v. Glover, 137 A.D.3d 745, 746, 25 N.Y.S.3d 890, quoting Simkin v. Blank, 19 N.Y.3d 46, 52, 945 N.Y.S.2d 222, 968 N.E.2d 459 ), and "a court may not impair a party's contractual rights under the agreement by modifying the judgment of divorce" ( Lafferty v. Lafferty, 256 A.D.2d 445, 446, 682 N.Y.S.2d 75 ; see Rainbow v. Swisher, 72 N.Y.2d 106, 106, 531 N.Y.S.2d 775, 527 N.E.2d 258 ). "[A] stipulation of settlement entered into by parties to a divorce proceeding that is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability" ( Sanfilippo v. Sanfilippo, 137 A.D.3d 773, 774, 31 N.Y.S.3d 78 ; see Christian v. Christian, 42 N.Y.2d 63, 72–73, 396 N.Y.S.2d 817, 365 N.E.2d 849 ; Trimarco v. Trimarco, 154 A.D.3d 792, 794, 62 N.Y.S.3d 166 ; Karen E. v. Yoram E., 144 A.D.3d 1081, 1081, 42 N.Y.S.3d 281 ). "A stipulation ... will not be vacated simply because a party, after the fact, believes that the agreement was improvident in some respect or that it...