Shah v. Mitra

• Decision Date: 10 April 2019
• Docket Number: Index No. 201557/16,2017–01507
• Citation: 98 N.Y.S.3d 197,171 A.D.3d 971
• Parties: Shefali SHAH, Appellant-Respondent, v. Neal MITRA, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 971

98 N.Y.S.3d 197

Shefali SHAH, Appellant-Respondent,

v.Neal MITRA, Respondent-Appellant.

2017–01507

Index No. 201557/16

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

Argued—January 24, 2019

April 10, 2019

Schlissel Ostrow Karabatos, PLLC, Garden City, N.Y. (Elena Karabatos, Jeanine M. Rooney, and Lisa R. Schoenfeld of counsel), for appellant-respondent.

Anthony A. Capetola, Williston Park, N.Y. (Robert P. Johnson and Linda Kule of counsel), for respondent-appellant.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Nassau County (Jeffrey A. Goodstein, J.), entered February 2, 2017. The order, insofar as appealed from, (1) denied those branches of the plaintiff's motion which were pursuant to CPLR 3211(a) to dismiss the defendant's fourth counterclaim, and pursuant to CPLR 3211(b) to dismiss the defendant's fourth affirmative defense, and (2) granted that branch of the defendant's cross motion which was, in effect, for summary judgment on his fourth counterclaim to the extent of setting aside Articles V, VII, VIII, IX, X, and XI of the parties' postnuptial agreement on the ground that those articles were unconscionable. The order, insofar as cross-appealed from, (1) granted those branches of the plaintiff's motion which were pursuant to CPLR 3211(a) to dismiss the defendant's first, second, and, in effect, sixth counterclaims, and pursuant to CPLR 3211(b) to dismiss the defendant's second, third, and fifth affirmative defenses, and (2) denied those branches of the defendant's cross motion which were, in effect, for summary judgment on his first, second, and sixth counterclaims.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's cross motion which was, in effect, for summary judgment on his fourth counterclaim to the extent of setting aside Articles V, VII, VIII, IX, X, and XI of the parties' postnuptial agreement on the ground that those articles were unconscionable, and substituting therefor a provision denying that branch of the defendant's cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The parties were married in 2001, and have two children. On December 21, 2015, the parties entered into a postnuptial agreement (hereinafter the agreement), with an effective date of January 1, 2016. The agreement provided that it would be considered a marital settlement agreement in the event the parties divorce.

In June 2016, the plaintiff commenced this action for a divorce and ancillary relief. The plaintiff sought a judgment of divorce which incorporated, but did not merge, the terms of the agreement.

In an amended answer, the defendant asserted six affirmative defenses. As relevant here, the second and third affirmative defenses alleged that the agreement should be set aside on the ground that the defendant was fraudulently induced into entering into it. The fourth affirmative defense alleged that the agreement should be set aside on the ground that it is unconscionable. The fifth affirmative defense alleged that the agreement should be set aside on the grounds that it was executed under "coercion and duress."

In the amended answer, the defendant also asserted seven counterclaims. As relevant here, the first counterclaim sought a declaration that the agreement was null and void due to fraudulent inducement. The second counterclaim sought a declaration that the agreement was null and void due to coercion. The fourth counterclaim sought a declaration that the agreement was null and void due to overreaching and unconscionability. The sixth counterclaim sought a declaration that the agreement was null and void on the ground of duress.

The plaintiff moved, inter alia, pursuant to CPLR 3211(a) to dismiss the first, second, fourth, and sixth counterclaims, and pursuant to CPLR 3211(b) to dismiss the second, third, fourth, and fifth affirmative defenses. The defendant cross-moved, inter alia, in effect, for summary judgment on the second, third, fourth, and sixth counterclaims.

In the order appealed from, the Supreme Court, among other things, granted those branches of the plaintiff's motion which were pursuant to CPLR 3211(a) to dismiss the defendant's first, second, and, in effect, sixth counterclaims, and pursuant to CPLR 3211(b) to dismiss the defendant's second, third, and fifth affirmative defenses. The court denied those branches of the plaintiff's motion which were pursuant to CPLR 3211(a) to dismiss the defendant's fourth counterclaim, and pursuant to CPLR 3211 )(b) to dismiss the defendant's fourth affirmative defense.

With respect to the defendant's cross motion, the Supreme Court, among other things, granted that branch of the defendant's cross motion which was, in effect, for summary judgment on the defendant's fourth counterclaim to the extent of setting aside Articles V, VII, VIII, IX, X, and XI of the parties' agreement on the ground that those articles were unconscionable. The court denied those branches of the defendant's cross motion which were, in effect, for summary judgment on his first, second, and sixth counterclaims.

The plaintiff appeals, and the defendant cross-appeals, from the order. We modify.

"On a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(7), a court must accept as true the facts as alleged in the pleading, accord the pleader the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Wand, Powers & Goody, LLP v. Yuliano , 144 A.D.3d 1017, 1018, 42 N.Y.S.3d 229 ; see McKesson Medical–Surgical Minn. Supply, Inc. v. Caremed Supplies, Inc. , 164 A.D.3d 1441, 1442, 84 N.Y.S.3d 222 ; see also Leon v. Martinez , 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "At the same time, however, allegations consisting of bare legal conclusions ... are not entitled to any such consideration" ( Simkin v. Blank , 19 N.Y.3d 46, 52, 945 N.Y.S.2d 222, 968 N.E.2d 459 [internal quotation marks omitted]; see Connaughton v. Chipotle Mexican Grill, Inc. , 29 N.Y.3d 137, 141–142, 53 N.Y.S.3d 598, 75 N.E.3d 1159 ). "Dismissal of the [counterclaim] is warranted if the [counterclaimant] fails to assert facts in support of an element of the [counterclaim], or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" ( Connaughton v. Chipotle Mexican Grill, Inc. , 29 N.Y.3d at 142, 53 N.Y.S.3d 598, 75 N.E.3d 1159 ; see Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc. , 115 A.D.3d 128, 134, 980 N.Y.S.2d 21 ).

On a motion to dismiss a counterclaim based upon documentary evidence pursuant to CPLR 3211(a)(1), dismissal is warranted "only where the documentary evidence that forms the basis of the defense utterly refutes the ... factual allegations [underlying the counterclaim], and conclusively disposes of the [counterclaim] as a matter of law" ( Nero v. Fiore , 165 A.D.3d 823, 826, 86 N.Y.S.3d 96 ; see Yellow Book Sales & Distrib. Co., Inc. v. Hillside Van Lines, Inc. , 98 A.D.3d 663, 664, 950 N.Y.S.2d 151 ; see generally Goshen v. Mutual Life Ins. Co. of N.Y. , 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ). To qualify as documentary evidence, the evidence "must be unambiguous and of undisputed authenticity" ( Fontanetta v. John Doe 1 , 73 A.D.3d 78, 86, 898 N.Y.S.2d 569 ; see Nero v. Fiore , 165 A.D.3d at 826, 86 N.Y.S.3d 96 ; Flushing Sav. Bank, FSB v. Siunykalimi , 94 A.D.3d 807, 808, 941 N.Y.S.2d 719 ). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" ( Fontanetta v. John Doe 1 , 73 A.D.3d at 84–85, 898 N.Y.S.2d 569 [internal quotation marks omitted] ). "Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence" ( 25–01 Newkirk Ave., LLC v. Everest Natl. Ins. Co. , 127 A.D.3d 850, 851, 7 N.Y.S.3d 325 ; see Nero v. Fiore , 165 A.D.3d at 826, 86 N.Y.S.3d 96 ; First Choice Plumbing Corp. v. Miller Law Offs., PLLC , 164 A.D.3d 756, 758, 84 N.Y.S.3d 171 ; Granada Condominium III Assn. v. Palomino , 78 A.D.3d 996, 997, 913 N.Y.S.2d 668 ).

CPLR 3211(b) provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses "are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense" ( Bank of Am., N.A. v. 414 Midland Ave. Assoc., LLC , 78 A.D.3d 746, 748, 911 N.Y.S.2d 157 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v. Rios , 160 A.D.3d 912, 913, 74 N.Y.S.3d 321 ; Bank of N.Y. v. Penalver , 125 A.D.3d 796, 797, 1 N.Y.S.3d 825 ). "On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true" ( Wells Fargo Bank, N.A. v. Rios , 160 A.D.3d at 913, 74 N.Y.S.3d 321 ; see Bank of N.Y. v. Penalver , 125 A.D.3d at 797, 1 N.Y.S.3d 825 ; Bank of Am., N.A. v. 414 Midland Ave. Assoc., LLC , 78 A.D.3d at 748–749, 911 N.Y.S.2d 157 ). "Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed" ( Wells Fargo Bank, N.A. v. Rios , 160 A.D.3d at 913, 74 N.Y.S.3d 321 ; see Fireman's Fund Ins. Co. v. Farrell , 57 A.D.3d 721, 723, 869 N.Y.S.2d 597 ).

Here, the plaintiff's documentary evidence failed to establish, as a matter of law, that ...