April Davella v Mark Davella

Davella v Davella 2004 NY Slip Op 05186 [8 AD3d 424] June 14, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

April Davella, Respondent,
v
Mark Davella, Appellant.

—[*1]

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Suffolk County (Whelan, J.), dated May 9, 2003, which denied his motion, inter alia, to set aside a stipulation of settlement entered into between the parties on December 5, 2001.

Ordered that the order is affirmed, with costs.

The plaintiff and the defendant were married on September 21, 1990. On December 5, 2001, they executed a stipulation of settlement subsequent to the commencement of an action for a divorce (hereinafter the stipulation). On December 12, 2002, the defendant moved, inter alia, to set aside the stipulation. The Supreme Court denied the motion and the defendant appeals.

A stipulation of settlement which is fair on its face will not be set aside absent fraud, duress, overreaching, or unconscionability (see Christian v Christian, 42 NY2d 63 [1977]; Strangolagalli v Strangolagalli, 295 AD2d 338 [2002]). Here, the defendant failed to present sufficient evidence to demonstrate any grounds to set aside the stipulation. Thus, his motion was properly denied.

The defendant's contention that the stipulation should have been set aside because of the plaintiff's noncompliance with her obligations under the stipulation is without evidentiary support. Florio, J.P., Adams, Cozier and Lifson, JJ., concur.