Kany v. Kany

• Decision Date: 23 March 2017
• Docket Number: 3502, 303079/15.
• Citation: 50 N.Y.S.3d 337,148 A.D.3d 584
• Court: New York Supreme Court — Appellate Division
• Parties: Heather H. KANY, Plaintiff–Appellant, v. Steven KANY, Defendant–Respondent.

148 A.D.3d 584

50 N.Y.S.3d 337

Heather H. KANY, Plaintiff–Appellant,

v.Steven KANY, Defendant–Respondent.

3502, 303079/15.

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

March 23, 2017.

Donohoe Talbert, LLP, New York (Margaret M. Donohoe of counsel), for appellant.

Berman Frucco Gouz Mitchel & Schub P.C., White Plains (Benjamin E. Schub of counsel), for respondent.

SWEENY, J.P., RICHTER, MOSKOWITZ, FEINMAN, GISCHE, JJ.

Order, Supreme Court, New York County (Lori S. Sattler, J.), entered on or about September 11, 2015, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a) and/or for summary judgment pursuant to CPLR 3212, and for counsel fees, unanimously affirmed, without costs.

Plaintiff's fraud claims are conclusively refuted by the plain terms of the parties' 1995 written settlement agreement, which was referenced by, and attached as an exhibit to, the complaint. Pursuant to the agreement, plaintiff waived any and all right and claim to "any participation or interest that [defendant] may now or in the future have in any retirement plan." Thus, she assumed the risk that at the time the agreement was executed defendant had an interest in a retirement plan of which she was not aware. Moreover, plaintiff "specifically acknowledged that she had made her own independent investigation of defendant's business affairs and was waiving further disclosure" (DiSalvo v. Graff, 227 A.D.2d 298, 642 N.Y.S.2d 883 [1st Dept.1996] ; and see

Kojovic v. Goldman, 35 A.D.3d 65, 68–69, 823 N.Y.S.2d 35 [1st Dept.2006], lv. denied 8 N.Y.3d 804, 831 N.Y.S.2d 106, 863 N.E.2d 111 [2007] ).

The allegation that the supplemental retirement benefits were fraudulently concealed from plaintiff is also flatly refuted by the emails and written correspondence submitted on defendant's motion, many by plaintiff herself. The emails and written correspondence may be considered documentary evidence, because they were submitted to show that defendant's supplemental retirement assets were disclosed, and they are "essentially undeniable" (Amsterdam Hospitality Group, LLC v. Marshall–Alan Assoc., Inc., 120 A.D.3d 431, 433, 992 N.Y.S.2d 2 [1st Dept.2014] [internal quotation marks omitted] ). Since, at the very least, the disclosures in defendant's net worth statement and in the benefits booklet issued by his employer put plaintiff on inquiry notice that defendant was entitled to supplemental retirement benefits, the complaint is time-barred (see DeLuca v....