Summary
holding that the Appellate Division will not consider arguments raised for the first time on appeal
Summary of this case from Fuchsberg Fuchsberg v. GaliziaOpinion
February 5, 1993
Appeal from the Supreme Court, Monroe County, Galloway, J.
Present — Denman, P.J., Pine, Balio, Fallon and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The parties entered into a separation agreement on June 7, 1989. That agreement was incorporated but not merged in a judgment of divorce granted to defendant. Thereafter, plaintiff commenced this action to set aside the agreement on the grounds of unfairness, undue influence, lack of financial disclosure and overreaching. Defendant appeals from Supreme Court's order that denied his motion to dismiss the complaint and granted plaintiff's cross motion that sought financial disclosure and discovery.
Defendant's argument that the complaint should have been dismissed because plaintiff's vague and conclusory allegations of unfairness, undue influence, lack of financial disclosure and overreaching are insufficient as a matter of law, is raised for the first time on appeal, and therefore, that argument is not properly before us (see, MacMaster v Sardina, 182 A.D.2d 1132; Kocher v Baird, 174 A.D.2d 1042).
Supreme Court erred, however, in granting plaintiff's cross motion and we therefore modify the order to deny it. Plaintiff failed to establish the requisite "legitimate factual predicate" for the discovery sought and there is no basis to depart from the general rule that financial disclosure is inappropriate unless and until the existing separation agreement is set aside (see, Rupert v Rupert [appeal No. 1], 190 A.D.2d 1027 [decided herewith]; Fakiris v Fakiris, 177 A.D.2d 540, 543; Cruey v Cruey, 159 A.D.2d 241; Gilsten v Gilsten, 137 A.D.2d 411, 413; Oberstein v Oberstein, 93 A.D.2d 374).