Mesiti v. Mongiello

• Decision Date: 12 May 2011
• Citation: 924 N.Y.S.2d 175,2011 N.Y. Slip Op. 03941,84 A.D.3d 1547
• Parties: Anna Marie MESITI, Appellant,v.Anthony MONGIELLO, Respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1547

924 N.Y.S.2d 175

2011 N.Y. Slip Op. 03941

Anna Marie MESITI, Appellant,

v.Anthony MONGIELLO, Respondent.

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

May 12, 2011.

Orseck Law Offices, P.L.L.C., Liberty (Gerald Orseck of counsel), for appellant.Kalter, Kaplan, Zeigler & Forman, Woodbourne (Terry S. Forman of counsel), for respondent.Before: SPAIN, J.P., LAHTINEN, KAVANAGH, McCARTHY and EGAN JR., JJ.EGAN JR., J.

Appeal from an order of the Supreme Court (Ledina, J.), entered June 23, 2010 in Sullivan County, which, among other things, granted defendant's motion to dismiss the complaint.

The parties were married in 1987 and are the parents of two children, born in 1993 and 1998. In April 2008, plaintiff (hereinafter the wife) commenced an action for divorce. In September 2008, respondent (hereinafter the husband) filed an application seeking sole custody of the children, and a hearing upon that application was scheduled for September 11, 2008. Shortly before that hearing, the parties signed two written agreements —one entitled “ Separation and Property Settlement Agreement” and the other entitled “Child Support and Custody Settlement.” On the day of the hearing, the wife appeared with her attorney, who informed Supreme Court that the wife had signed the agreements against his advice and his law firm wished to withdraw as her counsel. Supreme Court then granted the wife a 10–day adjournment to reconsider her consent to the agreements and to seek the advice of new counsel. By correspondence faxed to Supreme Court on September 17, 2008, the wife requested a three to four-week extension of time to obtain counsel. When the parties reconvened on September 22, 2008, Supreme Court asked the wife if she needed additional time to reconsider the agreements. In response, the wife withdrew her extension request and declared that “[she was] just going to take the agreement and just end all this” and that she would “go with the agreement that [the parties] signed.” Supreme Court then accepted the parties' agreements, which were incorporated, but not merged, into a judgment of divorce.

By correspondence to Supreme Court dated September 26, 2008, the wife asserted that she had been forced into signing “all legal documents related to all aspects of [her] life” and requested that Supreme Court assist her in retracting “all signatures pertaining” to the September 22, 2008 proceeding. In January 2010, the wife commenced this action, seeking, among other things, to rescind the agreements based upon allegations of fraud, duress, overreaching and unconscionability. Supreme Court granted the husband's motion to dismiss the complaint for failure to state a cause of action. The wife now appeals, and we affirm.

“While a separation agreement will be more closely scrutinized by the courts than ordinary contracts given the fiduciary relationship between husband and wife, such an agreement will not be set aside unless there is evidence of ‘overreaching, fraud, duress or a bargain so inequitable that no reasonable and competent person would have consented to it’ ” ( Empie v. Empie, 46 A.D.3d 1008, 1009, 846 N.Y.S.2d 811 [2007], quoting Curtis v. Curtis, 20 A.D.3d 653, 654, 798 N.Y.S.2d 764 [2005]; see Smith v. Smith, 75 A.D.3d 784, 786, 904 N.Y.S.2d 815 [2010] ). “[S]pouses are encouraged to resolve their own issues and judicial review of separation agreements is to be exercised sparingly” ( Marin–Brown v. Brown, 79 A.D.3d 1302, 1303, 912 N.Y.S.2d 755 [2010] ). When considering the wife's claims in the context of a motion to dismiss pursuant to CPLR 3211, “the complaint is liberally construed, the facts alleged therein are accepted as true, [the wife is] accorded every favorable inference and the court determines only whether the facts alleged in the complaint ‘fit within any cognizable legal theory’ ” ( Lazic v. Currier, 69 A.D.3d 1213, 1213–1214, 893 N.Y.S.2d 373 [2010], quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]; see Lopes v. Bain, 82 A.D.3d 1553, 1555, 920 N.Y.S.2d 792 [2011]; Keehle v. Diocese of Syracuse, 80 A.D.3d 974, 974, 915 N.Y.S.2d 352 [2011] ). However, “[t]he rule that the facts alleged are presumed to be true does not apply ... to legal conclusions or to factual claims which are either inherently incredible or flatly contradicted by documentary evidence” ( Quail Ridge Assoc. v. Chemical Bank, 162 A.D.2d 917, 918, 558 N.Y.S.2d 655 [1990], lv. dismissed 76 N.Y.2d 936, 563 N.Y.S.2d 64, 564 N.E.2d 674 [1990]; accord Lopes v. Bain, 82 A.D.3d at 1555, 920 N.Y.S.2d 792).

In first addressing the wife's claim of duress, she was required to demonstrate that threats allegedly made by the husband “deprived her of the ability to act in furtherance of her own interests, or deprived her of the ability to exercise her own free will” ( Lyons v. Lyons, 289 A.D.2d 902, 904, 734 N.Y.S.2d 734 [2001], lv. denied 98 N.Y.2d 601, 744 N.Y.S.2d 761, 771 N.E.2d 834 [2002] [internal quotation marks and citation omitted]; see Morand v. Morand, 2 A.D.3d 913, 914, 767 N.Y.S.2d 523 [2003] ). The wife alleged that, between September 3, 2008 and September 11, 2008, the husband and his attorneys threatened her, without counsel present, that unless she signed the agreements and advised Supreme Court that she did so by her own free will, her children would be taken from her. However, the wife's own statements at the September 11, 2008 court appearance belies this claim. At that proceeding, Supreme Court made a deliberate and careful inquiry into whether the wife read the agreements and understood their terms, provisions and legal implications. The wife, under oath, stated that she was satisfied that there had been full disclosure of all the marital property and confirmed that she was not coerced into executing the agreements. The wife acknowledged that counsel had advised her not to execute the agreements, but she decided to so anyway, she conceded that she had been advised on the law concerning child support and she waived the guidelines. Thereafter, at the September 22, 2008 court appearance, the wife withdrew her request for more time to consult an attorney and, in response to the court's inquiry as to whether defendant's answers would be different if she was asked the same questions posed to her at the September 11, 2008 court appearance, defendant answered, “No.” Accordingly, the wife's allegations of duress are flatly contradicted by the transcripts of the September 11 and 22, 2008 court proceedings and are not entitled to any deferential consideration ( see Maas v. Cornell Univ., 94 N.Y.2d 87, 91, 699 N.Y.S.2d 716, 721 N.E.2d 966 [1999]; Balunas v. Town of Owego, 56 A.D.3d 1097, 1098, 867 N.Y.S.2d 788 [2008], lv. denied 12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [2009]; Quail Ridge Assoc. v. Chemical Bank, 162 A.D.2d at 918, 558 N.Y.S.2d 655). Furthermore, since the husband had the right to call witnesses in support of his application seeking custody of the children, we are unpersuaded that the mere presence of those witnesses in the courtroom in...