Opinion
No. 2021-02878 Index No. 606057/19
04-17-2024
Vasil Tsikhiseli, appellant, v. Loreta Colombo, respondent.
Goodman Jurist & Pandolfo, LLP, Garden City, NY (Howard Jurist of counsel), for appellant. Jason M. Barbara & Associates P.C., New Hyde Park, NY (Debora Shamoilia of counsel), for respondent.
Goodman Jurist & Pandolfo, LLP, Garden City, NY (Howard Jurist of counsel), for appellant.
Jason M. Barbara & Associates P.C., New Hyde Park, NY (Debora Shamoilia of counsel), for respondent.
COLLEEN D. DUFFY, J.P. PAUL WOOTEN LILLIAN WAN JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to set aside a stipulation of settlement, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated March 18, 2021. The order, insofar as appealed from, granted that branch of the defendant's motion which was for summary judgment dismissing the complaint and denied the plaintiff's cross-motion for summary judgment on the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In March 2019, the plaintiff commenced this action to set aside a stipulation of settlement dated November 7, 2017 (hereinafter the stipulation), which was incorporated but not merged into the parties' judgment of divorce. Thereafter, the defendant moved, inter alia, for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the complaint. In an order dated March 18, 2021, the Supreme Court, among other things, granted that branch of the defendant's motion which was for summary judgment dismissing the complaint and denied the plaintiff's cross-motion. The plaintiff appeals.
"'Stipulations of settlement are favored by the courts and are not lightly set aside'" (Sabowitz v Sabowitz, 123 A.D.3d 794, 795, quoting Campione v Alberti, 98 A.D.3d 706, 706 [internal quotation marks omitted]). "'[A] stipulation of settlement entered into by parties to a divorce proceeding that is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability'" (Cohen v Cohen, 170 A.D.3d 948, 949, quoting Sanfilippo v Sanfilippo, 137 A.D.3d 773, 774; see Christian v Christian, 42 N.Y.2d 63, 72-73). "'A stipulation... will not be vacated simply because a party, after the fact, believes that the agreement was improvident in some respect or that it constituted a bad bargain'" (Cohen v Cohen, 170 A.D.3d at 949, quoting Turk v Turk, 276 A.D.2d 953, 955).
Here, the defendant established her prima facie entitlement to judgment as a matter of law by submitting evidence showing that the stipulation was fair on its face, by which the plaintiff received meaningful benefits; that the stipulation was entered into after months of discussions between the parties; and that the stipulation provided that the parties entered into the stipulation "freely, voluntarily and after due consideration of the consequences of doing so" and that each party was "fully informed of the income, assets, property and financial prospects of the other" (see McCaul v McCaul, 179 A.D.3d 785, 786; Sabowitz v Sabowitz, 123 A.D.3d at 795). Moreover, the defendant submitted the plaintiff's deposition testimony, during which the plaintiff acknowledged that he accepted the terms of the stipulation after the parties "negotiated" and that "what [the defendant] offered was fine for [him]." In opposition to the defendant's prima facie showing, the plaintiff's conclusory and unsubstantiated claims were insufficient to raise a triable issue of fact as to overreaching or unconscionability (see McCaul v McCaul, 179 A.D.3d at 786; Ricca v Ricca, 57 A.D.3d 868, 869). Further, "[t]he fact that the plaintiff was not represented by independent counsel when the [stipulation] was executed does not, without more, establish overreaching or require automatic nullification of the [stipulation]," especially since the stipulation provided that the plaintiff was entitled to obtain the advice of independent counsel of his own selection (Brennan v Brennan, 305 A.D.2d 524, 525; see Hershkowitz v Levy, 190 A.D.3d 835, 837).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint and denied the plaintiff's cross-motion for summary judgment on the complaint.
DUFFY, J.P., WOOTEN, WAN and TAYLOR, JJ., concur.