Hirsch v. Hirsch

8 Citing cases

  1. Fixler v. Fixler

    290 A.D.2d 482 (N.Y. App. Div. 2002)   Cited 6 times
    Dismissing husband's fraud claim against former wife where husband "could reasonably have discovered the defendant's true financial condition by reviewing their 1987 joint tax returns"

    Similarly, he could have reasonably discovered the defendant's alleged failure to provide the required insurance policy by requesting proof of such a policy shortly after the defendant allegedly was supposed to have provided the policy (see, CPLR 213; CPLR 203[g]; see also, Rosenbaum v. Rosenbaum, 271 A.D.2d 427; Prestandrea v. Stein, 262 A.D.2d 621; Hoffman v. Cannone, 206 A.D.2d 740; Garguilio v. Garguilio, 201 A.D.2d 617). Additionally, the plaintiff's claims are negated by his ratification of the separation agreement for over 12 years (see, Beutel v. Beutel, 55 N.Y.2d 957; Hirsch v. Hirsch, 134 A.D.2d 485; see also, Star v. Star, 260 A.D.2d 363; Genovese v. Genovese, 243 A.D.2d 679; Shalmoni v. Shalmoni, 141 A.D.2d 628). Since the plaintiff has a net income of $1550 per month, he is in no danger of becoming a public charge (see generally, Sass v. Sass, 276 A.D.2d 42; Tartaglia v. Tartaglia, 260 A.D.2d 628; Lasky v. Lasky, 163 Misc.2d 859, affd 216 A.D.2d 366; cf., General Obligations Law § 5-311).

  2. Silvers v. Silvers

    267 A.D.2d 298 (N.Y. App. Div. 1999)   Cited 1 times

    Contrary to the appellant's implicit contention, her right to the proceeds from the sale of the marital premises under a 1979 separation agreement terminated upon the execution, under advice of counsel, of a 1981 amended separation agreement that represented "the complete and entire agreement of the parties". Moreover, the appellant's attempt to reform the 1981 amended separation agreement as unconscionable must fail since she was represented by counsel and she accepted the benefits of the agreement for 15 years before commencing suit (see, Stampfel v. Stampfel, 170 A.D.2d 595; Hirsch v. Hirsch, 134 A.D.2d 485). Additionally, her causes of action for rescission, fraud, and to impose a constructive trust are time-barred (see, CPLR 213[1], [2], [8]; Fiore v. Fiore, 247 A.D.2d 362; Riley v. Riley, 179 A.D.2d 750;Sitkowski v. Petzing, 175 A.D.2d 801; Frasca v. Frasca, 129 A.D.2d 766;Curry v. Chollette, 57 A.D.2d 604).

  3. Star v. Star

    260 A.D.2d 363 (N.Y. App. Div. 1999)   Cited 4 times

    In June 1997 the plaintiff filed the present action to set aside the stipulation on the basis, inter alia, that it was procured by fraud, and that it was unfair and unconscionable. The stipulation between the parties contains express acknowledgments by the plaintiff that she fully understood the terms of the stipulation, that it was not the product of fraud, duress, or undue influence, and that she relied upon the representations of her retained attorney and the accountants she had retained to conduct an independent investigation of the defendant's financial circumstances ( see, Hirsch v. Hirsch, 134 A.D.2d 485). The stipulation provides that the plaintiff was satisfied that full disclosure had been made by the defendant and that she could not appropriately make a claim against him by reason of his failure to disclose or her failure to have knowledge of his financial circumstances. Thus, "neither the stipulation on its face nor the circumstances surrounding its making suggest that it was arrived at other than fairly" ( Burton v. Burton, 148 A.D.2d 488).

  4. Niosi v. Niosi

    226 A.D.2d 510 (N.Y. App. Div. 1996)   Cited 9 times

    The respondent substantially performed his obligations under the separation agreement for several years at which time he commenced an action for divorce and for rescission of the agreement on the theory of unconscionability. It has been recognized that the acceptance of the terms of a separation agreement, by payment or acceptance of payment, constitutes ratification ( see, Shalmoni v. Shalmoni, 141 A.D.2d 628, 629; Hirsch v. Hirsch, 134 A.D.2d 485). Because the respondent paid maintenance to the appellant for six years and accepted tax benefits under the agreement for at least five years, his acts ratified the separation agreement. A party "who executes a contract under duress and then acquiesces in the contract for any considerable length of time ratifies the contract" ( Sheindlin v Sheindlin, 88 A.D.2d 930, 931 [husband's application to set aside separation agreement was denied on the ground that agreement had been "ratified and approved and at least partially complied with for almost a three-year period"]).

  5. Patti v. Patti

    146 A.D.2d 757 (N.Y. App. Div. 1989)   Cited 9 times

    Accordingly, the wife's vague and conclusory allegations of nondisclosure were insufficient to warrant a hearing as to whether the agreements or any portions thereof should be set aside for fraud and overreaching (see, Christian v Christian, 42 N.Y.2d 63; McDougall v McDougall, 129 A.D.2d 685), or whether they were fair and reasonable when made and would not be unconscionable at the time of entry of the final judgment (see, Domestic Relations Law § 236 [B] [3]). Additionally, we find that inasmuch as the wife accepted the benefits of the separation agreement and the modification thereof for years before moving to vacate them, she is precluded from now challenging them (see, Beutel v Beutel, 55 N.Y.2d 957; Hirsch v Hirsch, 134 A.D.2d 485; Weinstein v Weinstein, 109 A.D.2d 881; Chasin v Chasin, 98 A.D.2d 788). Furthermore, the Supreme Court properly denied the wife's motion to renew, as she did not offer a valid excuse for her failure to apprise the court of the alleged additional facts at the time the original motion was made (see, McRory v Craft Architectural Metals Corp., 112 A.D.2d 358).

  6. Shalmoni v. Shalmoni

    141 A.D.2d 628 (N.Y. App. Div. 1988)   Cited 9 times

    We further note that the plaintiff accepted the benefits of the equitable distribution of property and the child support payments provided under the separation agreement for a period in excess of three years and by her actions essentially ratified the agreement (see, Beutel v Beutel, 55 N.Y.2d 957; Chalos v Chalos, 128 A.D.2d 498, lv denied 70 N.Y.2d 609, rearg denied 70 N.Y.2d 927; Stoerchle v Stoerchle, 101 A.D.2d 831). The plaintiff's ratification of the agreement upon the facts of this case effectively negates her claim of fraud (see, Hirsch v Hirsch, 134 A.D.2d 485; Chalos v Chalos, supra). We have reviewed the plaintiff's remaining claims and find them to be without merit.

  7. Pascarella v. Goldberg, Cohn Richter

    2009 N.Y. Slip Op. 52193 (N.Y. Sup. Ct. 2009)   Cited 1 times

    Lastly, the court notes that plaintiff initially had challenged the validity of the settlement in the matrimonial action because it was "one-sided and unconscionable," but later withdrew his objections in the matrimonial action and elected to abide by the terms of the settlement, as reflected in the stipulation of October 1, 2004. Plaintiff's ratification of the settlement and his acceptance of its terms for a period in excess of one year in the matrimonial action effectively bars a collateral attack on the settlement in this action ( see Hirsch v Hirsch, 134 AD2d 485 [2d Dept 1987]). Accordingly, that branch of defendants' motion for summary judgment dismissing plaintiff's legal malpractice claim is granted.

  8. Smith v. Ameriquest Mtge. Co.

    2006 N.Y. Slip Op. 52707 (N.Y. Sup. Ct. 2006)

    Defendants failed to present a prima facie case of entitlement to summary judgment by failing to submit an affidavit from defendant Simms, the defendant who clearly possessed the most information with regard to the communications between plaintiff and defendants. ( See Hirsch v. Hirsch, 134 AD2d 485 [2nd Dept. 1987].) The affidavits of merit submitted do not address the factual questions with regard to solicitation of plaintiff to refinance and the circumstances of the closing.