Warren v. Rabinowitz
| Decision Date | 10 June 1996 |
| Citation | 644 N.Y.S.2d 315,228 A.D.2d 492 |
| Parties | Louise K. WARREN, Appellant, v. Marc RABINOWITZ, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Marsha F. Coopersmith, Tallman, for appellant.
Klein & Klein, P.C., Suffern (David M. Klein, of counsel), for respondent.
Before MILLER, J.P., and RITTER, KRAUSMAN and McGINITY, JJ.
MEMORANDUM BY THE COURT.
In an action to rescind a separation agreement, the plaintiff appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated March 23, 1995, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On December 14, 1993, after approximately one and one-half years of marriage, the parties executed a separation agreement. A judgment of divorce incorporating, but not merging, the separation agreement was entered on December 23, 1993. The plaintiff commenced the instant action on March 23, 1994, seeking to modify or rescind the separation agreement on the grounds that she was not represented by independent counsel at the time the agreement was executed and that the terms of the agreement were unfair and unconscionable. The Supreme Court granted the defendant's motion for summary judgment and dismissed the plaintiff's complaint.
The fact that the plaintiff was not represented by independent counsel when the separation agreement was executed does not, without more, establish overreaching or require automatic nullification of the agreement (see, Levine v. Levine, 56 N.Y.2d 42, 48, 451 N.Y.S.2d 26, 436 N.E.2d 476; Tirrito v. Tirrito, 191 A.D.2d 686, 595 N.Y.S.2d 786; Chauhan v. Thakur, 184 A.D.2d 744, 585 N.Y.S.2d 482). Furthermore, there was no evidence, other than the plaintiff's conclusory assertions, to support her claim of diminished physical or mental capacity at the time the separation agreement was executed (see, Nasifoglu v. Nasifoglu, 224 A.D.2d 504, 637 N.Y.S.2d 792; Weinstock v. Weinstock, 167 A.D.2d 394, 561 N.Y.S.2d 807).
It is well settled that a separation agreement fair on its face will be enforced according to its terms unless fraud, overreaching, or unconscionability is shown (see, Torsiello v. Torsiello, 188 A.D.2d 523, 591 N.Y.S.2d 472; Ruxton v. Ruxton, 181 A.D.2d 876, 581 N.Y.S.2d 448; Stoerchle v. Stoerchle, 101 A.D.2d 831, 475 N.Y.S.2d 489). Such an agreement will not be overturned merely because it was improvident, not the most advantageous to the dissatisfied ...
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