Hershkowitz v. Levy
| Decision Date | 20 January 2021 |
| Docket Number | Index No. 203029/16,2018–05588 |
| Citation | 139 N.Y.S.3d 617,190 A.D.3d 835 |
| Parties | Sharon HERSHKOWITZ, respondent, v. Harold LEVY, Jr., appellant. |
| Court | New York Supreme Court — Appellate Division |
Law Offices of Harold J. Levy, P.C., Glen Cove, N.Y. (Harold J. Levy, Jr., sued herein as Harold Levy, Jr., pro se of counsel), for appellant.
Stutman Stutman & Lichtenstein, LLP, New York, N.Y. (Dana M. Stutman of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Nassau County (Thomas Rademaker, J.), entered March 6, 2018. The order, insofar as appealed from, denied those branches of the defendant's motion which were to set aside the parties' postnuptial agreement on the grounds of unconscionability, overreaching, breach of fiduciary duty, fraud, and lack of consideration.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The parties were married on July 24, 2005, when the defendant was 56 years old and the plaintiff was 52 years old. At the time of the marriage, the defendant was an established attorney, and the plaintiff had founded her own successful business.
Prior to the marriage, the parties entered into a prenuptial agreement that defined separate property, inter alia, as anything acquired by the parties prior to the marriage, and defined all earned income during the marriage as marital property. The parties subsequently entered into a four-page postnuptial agreement dated October 14, 2013, that redefined separate property as including any and all earned income or other compensation earned during the marriage. The parties also waived maintenance in the event of a divorce. The plaintiff was advised by an attorney in connection with the preparation and execution of the postnuptial agreement, but the defendant waived his opportunity to be so advised. The parties waived the right to insist on financial disclosure as a precondition to signing the postnuptial agreement.
On November 23, 2016, the plaintiff commenced this action for a divorce and ancillary relief. Thereafter, the defendant moved, inter alia, to set aside the postnuptial agreement on the grounds of unconscionability, overreaching, breach of fiduciary duty, fraud, and lack of consideration. The defendant asserted that the plaintiff had misled him as to the contents of the postnuptial agreement and that the plaintiff had kept the postnuptial agreement from him until moments before the parties executed it. In an order entered March 6, 2018, the Supreme Court, inter alia, denied those branches of the defendant's motion which were to set aside the postnuptial agreement on the grounds of unconscionability, overreaching, breach of fiduciary duty, fraud, and lack of consideration. The defendant appeals.
"An agreement between spouses which is fair on its face will be enforced according to its terms unless there is proof of unconscionability, or fraud, duress, overreaching, or other inequitable conduct" ( McKenna v. McKenna, 121 A.D.3d 864, 865, 994 N.Y.S.2d 381 ; see Rauso v. Rauso, 73 A.D.3d 888, 889, 902 N.Y.S.2d 573 ). " ‘Judicial review of separation agreements is to be exercised sparingly, with a goal of encouraging parties to settle their differences on their own’ " ( Brennan–Duffy v. Duffy, 22 A.D.3d 699, 699–700, 804 N.Y.S.2d 399, quoting Strangolagalli v. Strangolagalli, 295 A.D.2d 338, 338, 742 N.Y.S.2d 914 ). However, " ‘courts have thrown their cloak of protection’ over postnuptial agreements, ‘and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity’ " ( Petracca v. Petracca, 101 A.D.3d 695, 697–698, 956 N.Y.S.2d 77, quoting Christian v. Christian, 42 N.Y.2d 63, 72, 396 N.Y.S.2d 817, 365 N.E.2d 849 ). "Thus, ‘[i]n view of the fiduciary relationship existing between spouses, [postnuptial] agreements are more closely scrutinized by the courts than ordinary contracts’ " ( Kabir v. Kabir, 85 A.D.3d 1127, 1127, 926 N.Y.S.2d 158, quoting Cardinal v. Cardinal, 275 A.D.2d 756, 757, 713 N.Y.S.2d 370 ).
"A spouse seeking to set aside a postnuptial agreement initially ‘bears the burden to establish a fact-based, particularized inequality’ " ( Petracca v. Petracca, 101 A.D.3d at 698, 956 N.Y.S.2d 77, quoting Matter of Greiff, 92 N.Y.2d 341, 346, 680 N.Y.S.2d 894, 703 N.E.2d 752 ). "Where this initial burden is satisfied, a proponent of a postnuptial agreement ‘suffers the shift in burden to disprove fraud or overreaching’ " ( Petracca v. Petracca, 101 A.D.3d at 698, 956 N.Y.S.2d 77, quoting Matter of Greiff, 92 N.Y.2d at 346, 680 N.Y.S.2d 894, 703 N.E.2d 752 ).
Here, there is no credible evidence in the record to support the defendant's contention that the postnuptial agreement was procured by the plaintiff's fraud or overreaching. The defendant, who is presumed to know the contents of a contract that he has executed and to assent to them (see Prompt Mortg. Providers of North America, LLC v. Zarour, 155 A.D.3d 912, 914, 64 N.Y.S.3d 106 ; Shklovskiy v. Khan, 273 A.D.2d 371, 709 N.Y.S.2d 208 ), admitted to executing the postnuptial agreement. There is no indication that the defendant requested a copy of the postnuptial agreement prior to meeting with the notary. Nor is there any evidence that the defendant could not have signed the postnuptial agreement at a different time if he required a more thorough review. Furthermore, the four-page document was not complex, and its plain language was certainly not beyond the understanding of the defendant, a trained attorney. As such, the defendant is unable to prove a "justifiable reliance" on the plaintiff's alleged "misrepresentation or material omission" required for a finding of fraud ( Shah v. Mitra, 171 A.D.3d 971, 975, 98 N.Y.S.3d 197 ). Further, the absence of legal representation for the defendant, without more, does not establish overreaching on the part of the plaintiff,...
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