Tuzzolino v. Tuzzolino, 1326

• Citation: 156 A.D.3d 1402,67 N.Y.S.3d 740
• Decision Date: 22 December 2017
• Docket Number: CA 17–00651,1326
• Parties: Lawrence TUZZOLINO, Plaintiff–Appellant, v. Dianne TUZZOLINO, Defendant–Respondent. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1402
67 N.Y.S.3d 740

Lawrence TUZZOLINO, Plaintiff–Appellant,
v.
Dianne TUZZOLINO, Defendant–Respondent. (Appeal No. 1.)

1326
CA 17–00651

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

Entered: December 22, 2017

UNDERBERG & KESSLER LLP, ROCHESTER (RONALD G. HULL OF COUNSEL), FOR PLAINTIFF–APPELLANT.

SUSAN GRAY JONES, CANANDAIGUA, FOR DEFENDANT–RESPONDENT.

PRESENT: SMITH, J.P., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

Memorandum:

The parties were married in 1978 and entered into a separation agreement on October 30, 2013 and a modification agreement on July 7, 2014. In October 2015, plaintiff husband commenced this action seeking a divorce and to have the agreements set aside. Plaintiff also filed a motion seeking that same relief. In appeal No. 2, plaintiff appeals from an order denying his motion and, in appeal No. 1, he appeals from a judgment of divorce signed on the same date that incorporated the agreements. We note at the outset that appeal No. 2 must be dismissed inasmuch as the order in that appeal is subsumed in the final judgment of divorce (see Rooney v. Rooney [appeal No. 3], 92 A.D.3d 1294, 1295, 938 N.Y.S.2d 724 [4th Dept. 2012]lv. denied 19 N.Y.3d 810, 951 N.Y.S.2d 468, 975 N.E.2d 914 [2012] ; see also

67 N.Y.S.3d 742

Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988, 988, 529 N.Y.S.2d 658 [4th Dept. 1988] ).

We agree with plaintiff that the agreements are unfair and unconscionable and should be set aside. Separation agreements are subject to closer judicial scrutiny than other contracts because of the fiduciary relationship between spouses (see Christian v. Christian, 42 N.Y.2d 63, 72, 396 N.Y.S.2d 817, 365 N.E.2d 849 [1977] ; Gibson v. Gibson, 284 A.D.2d 908, 909, 726 N.Y.S.2d 195 [4th Dept. 2001] ). A separation agreement should be set aside as unconscionable where it is "such as no person in his or her senses and not under delusion would make on the one hand, and as no honest and fair person would accept on the other ..., the inequality being so strong and...