Braha v Braha

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[*1] Braha v Braha 2014 NY Slip Op 51532(U) Decided on October 14, 2014 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 14, 2014
Supreme Court, Kings County

Ezra Braha, Plaintiff,


Rina Braha, Defendant.


Brian D. Perskin, Esq.

Brian D. Perskin & Assoc. P.C.

Attorney for Plaintiff

380 Lexington Avenue

New York, New York 10168


Laurie Mermelstein, Esq.

Seidemann & Mermelstein

Attorney for Defendant

974 East 27th Street

Brooklyn, New York 11210


Sharyn M. Duncan, Esq. Attorney for the Children

32 Court Street

Brooklyn, New York 11201

Jeffrey S. Sunshine, J.

Upon the foregoing papers, motion sequences number 1 and 3 are consolidated for disposition. Defendant Rina Braha moves for an order declaring the Prenuptial Agreement entered into by the parties to be null and void.[FN1]

Facts and Procedural Background

The parties' Prenuptial Agreement was executed on December 5, 2002. They were married on December 12, 2002 and have two children, a daughter who is ten (10) years old and a who is seven (7) years old. In addition, defendant has two children from her first marriage, now 12 and 14 years old; plaintiff was also previously married and has one daughter from that marriage who is now 14. Defendant's four children currently reside with her. Plaintiff commenced the instant action on July 25, 2013.

Defendant's Contentions

In support of her position, defendant argues that she met plaintiff when she was 22 years old and he was 33. At that time, she was a divorced mother with two children, one 18 months old and the other three months old. She claims that she had no skills, was earning no money and was supporting herself and the children on the $1,300 per month in child support and $700 per month in maintenance that she was receiving from her former husband.

Defendant goes on to assert that the parties had a "whirlwind engagement of less than three weeks" and at the end of November, plaintiff informed her that they were getting married on December 12, 2002 because he had booked a honeymoon cruise for December 22, 2002. Less than two weeks before the marriage, plaintiff told defendant that he was receiving an immense amount of pressure from his father, who threatened to "cut him off" if they did not enter into a Prenuptial Agreement. Defendant goes on to claim that plaintiff told her that he did not need the agreement, but he wanted to satisfy his father. Defendant thus concludes that plaintiff fraudulently induced her to sign the Agreement, because before she signed it, plaintiff lead her to believe that he would never [*2]seek to enforce it, explaining that it was being executed as a "show" for his father.

More specifically, defendant alleges that plaintiff devised a plan where his attorney would draft the agreement and another attorney who previously represented her in a prior divorce would represent her; plaintiff's father would review the agreement; and all of the copies would be ripped up and thrown into the ocean on the parties' honeymoon cruise. Accordingly, defendant asserts that she did not pay any attention to or negotiate the terms of the agreement, since she believed that plaintiff would not enforce it and that it would be void. Defendant goes on to assert that she never would have agreed to sign the Prenuptial Agreement and limit her spousal maintenance.[FN2] Defendant further alleges that while they were on the cruise, both parties tore up their copies of the Prenuptial Agreement and threw the pieces into the ocean. Defendant thereafter believed that the Prenuptial Agreement no longer existed "until [plaintiff] in one of his fits of rage, dumped a copy on [the] table."

Defendant also alleges that plaintiff mislead her when he told her that his only asset was a 25% interest in Mermaid International Inc., when he was a 25% owner of Braha Management, Inc., which defendant characterizes as a multi-million dollar family business that owns properties along Flatbush Avenue in Brooklyn and hotels and malls in New Jersey.Defendant further supports her application with an affirmation from her former attorney in which he corroborates her story, alleging that he did not negotiate the terms of the Agreement, since both plaintiff and defendant made it clear to him that the Agreement would be torn up and thrown into the ocean on their honeymoon. He also alleges that it was obvious from the conversation between the parties that the marriage would not take place if the Prenuptial Agreement was not signed.

Plaintiff's Contentions

Plaintiff alleges that the Prenuptial Agreement was drafted, reviewed and agreed upon by both parties and their attorneys; he contends that is why he and defendant paid their lawyers to handle the matter. Plaintiff goes on to explain that he and defendant discussed how silly it was to go through this process, since they would most certainly remain married forever and the document would never be seen again. Plaintiff admits [*3]that they did make copies of the Prenuptial Agreement which they tossed away on their honeymoon. He goes on to state, however:

"Make no mistake, at no time did I ever intend to solely deceive my father and nullify the binding legal document that had been executed between defendant and I. I am quite sure that I am not the first husband-to-be who insisted on a prenuptial agreement because of parental pressure. I am advised that does not make the document any less enforceable.

"Moreover, the scenario being set forth makes no sense inasmuch as it would involve scheming to perpetuate a fraud involving two attorneys."

(Plaintiff's Affidavit, August 13, 2013, para 17-18).

Plaintiff thus concludes that although defendant now regrets signing the Prenuptial Agreement that she entered into knowingly, with the assistance of counsel, it is nonetheless binding and enforceable.

The Law

"In general, New York has a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements, including prenuptial agreements'" (Matter of Fizzinoglia, 118 AD3d 994, 995, 988 NYS2d 648 [2d Dept 2014], quoting Matter of Greiff, 92 NY2d 341, 344, 680 NYS2d 894). "Where, as here, the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence" (Rainbow v Swisher, 72 NY2d 106, 109, 680 NYS2d 894 [1988], citing Nichols v Nichols, 306 NY 490, 496 [1954]; accord Abramson v Gavares, 109 AD3d 849, 850, 971 NYS2d 538 [2d Dept 2013]; Monter v Balog, 104 AD3d 653, 653-654, 960 NYS2d 207 [2d Dept 2013]). Further:

"As with all contracts, prenuptial agreements are construed in accord with the parties' intent, which is generally gleaned from what is expressed in their writing. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms' (Greenfield v Philles Records, 98 NY2d 562, 569, 750 NYS2d 565 [2002]). Extrinsic evidence of the parties' intent may not be considered unless a court first finds that the agreement is ambiguous."

(Van Kipnis v Van Kipnis, 11 NY3d 573, 577, 872 NYS2d 426 [2008]). "Whether an agreement is ambiguous is a question of law for the courts" (Kass v Kass, 91 NY2d 554, [*4]566, 673 NYS2d 350 [1998], citing Van Wagner Adv. v S & M Enters., 67 NY2d 186, 191, 501 NYS2d 628 [1986]; accord Boster-Burton v Burton, 92 AD3d 909, 910, 940 NYS2d 111 [2d Dept 2012]; Clark v Clark, 33 AD3d 836, 837, 827 NYS2d 159 [2d Dept 2006]).

The burden of proof is on the party seeking to invalidate the agreement (see e.g. Weinstein v Weinstein, 36 AD3d 797, 798, 830 NYS2d 179 9 [2d Dept 2007], quoting Lombardi, 235 AD2d 400, 652 NYS2d 549 [2d Dept 1997]; Forsberg v Forsberg, 219 AD2d 615, 631 NYS2d 709 [2d Dept 1995]). "A party attacking the validity of the agreement has the burden of coming forward with evidence showing fraud, which will not be presumed, and must have as its basis evidence of overreaching — the concealment of facts, misrepresentation or some other form of deception" (Stawski v Stawski, 43 AD3d 776, 777, 843 NYS2d 544 [1st Dept 2007], citing Matter of Sunshine, 51 AD2d 326, 381 NYS2d 260 [1st Dept 1976], affd 40 NY2d 875, 389 NYS2d 344 [1976]). "The general rule with respect to prenuptial agreements places no special evidentiary or other burden on the party' who seeks to sustain the agreement" (Matter of Barabash, 84 AD3d 1363, 1364, 924 NYS2d 544 [2d Dept 2011], quoting Matter of Sunshine, 40 NY2d at 876]). In addressing the issue of the enforceability of the Prenuptial Agreement, it must also be recognized that as a general provision of contract interpretation, "a party who signs a document is conclusively bound by its terms absent a valid excuse for having failed to read it" (Arnav Indus. v Brown, Raysman, Millstein, Felder & Steiner, LLP, 96 NY2d 300, 304, 727 NYS2d 688 [ 2001], citing Gillman v Chase Manhattan Bank, 73 NY2d 1, 537 NYS2d 787 [1988]; Pimpinello v Swift & Co., 253 NY 159 [1930]; Metzger v Aetna Ins. Co., 227 NY 411 [1927]).


In this case, defendant fails to make a sufficient showing that would warrant setting the Prenuptial Agreement aside. Most significant in so holding is the court's finding that the language used by the parties is clear and unambiguous as a matter of law (see Kass, 91 NY2d at 566; Boster-Burton, 92 AD3d at 910; Clark, 33 AD3d at 837).

The court also notes that defendant was represented by counsel of her choosing, i.e., the attorney who represented her in her first divorce action, even if she chose not to ask for or to accept his advice (see generally McFarland v McFarland, 70 NY2d 916, 918, 524 NYS2d 392 [1987]; Beutel v Beutel, 55 NY2d 957, 958, 449 NYS2d 180 [1982]; Cosh v Cosh, 45 AD3d 798, 799, 847 NYS2d 136 [2d Dept 2007]; Brennan v Brennan, 300 AD2d 524, 525 [2d Dept 2002]). In fact, it has been held that the fact that a party was not represented by independent counsel when a divorce agreement was executed does not, by itself, establish overreaching or require automatic nullification (see e.g. Brennan-Duffy v Duffy, 22 AD3d 699, 700, 847 NYS2d 136 [2d Dept 2005]; Wilson v Neppell, 253 AD2d 493, 494, 677 NYS2d 144 [2d Dept 1998]; Matter of Sunshine, 51 AD2d at 328). Similarly, it has been held that the fact that plaintiff paid for defendant's attorney does not by itself raise a triable issue of fact as to duress or overreaching (see e.g. [*5]Colello v Colello, 9 AD3d 855, 858, 780 NYS2d 450 [4th Dept 2004]; Smith v Walsh-Smith, 66 AD3d 534, 535, 887 NYS2d 565 [1st Dept 2009], lv denied 14 NY3d 704, 898 NYS2d 100 [2010]).

In addition, it is well established that a failure to disclose financial matters, by itself, is not sufficient to vitiate a prenuptial agreement, particularly where there is no indication of an attempt to conceal or misrepresent the nature or extent of one's assets (see e.g. Matter of Fizzinoglia, 118 AD3d at 996, citing Strong v Dubin, 48 AD3d 232, 233, 851 NYS2d 428 [1st Dept 2008]; accord Cohen v Cohen, 93 AD3d 506, 506-507, 940 NYS2d 250 [1st Dept 2012]).

In upholding the parties' Prenuptial Agreement, it must also be noted that it has been held that even where it is uncontested that a party asked counsel no questions about the agreement because she "just want to get married," is an insufficient basis to set the agreement aside (see e.g. Leighton v Leighton, 46 AD3d 264, 267, 847 NYS2d 64 [1st Dept 2007] [plaintiff's purported threat to cancel the wedding if defendant refused to sign the agreement was held to be insufficient to constitute duress because as a matter of law, the exercise or threatened exercise of a legal right does not amount to duress]; see also Strong, 48 AD3d at 232-233; Colello, 9 AD3d at 858).

Finally, the Prenuptial Agreement expressly disclaims any reliance on representations other than those set forth therein. In this regard, the Agreement provides that:

"This Agreement contains the entire understanding of the parties with respect to the matters set forth herein, including, without limitation, the rights of the party with respect to the property of the other party. There are no representations, warranties, promises, covenants or understandings, oral or otherwise, other than those expressly set fort herein."

(Prenuptial Agreement, Representation, para [10][b], p 7). The Agreement goes on to provide that:

"Neither this Agreement [nor] any provisions hereof, including without limitation, this article, may be altered, modified, terminated, or revoked, except by an instrument executed and acknowledged by both parties with the same formalities as this Agreement."

(Prenuptial Agreement, Amendments, para 15, p 8). From this it follows that defendant's claim that the parties orally agreed that they would not be bound by the terms of the Agreement is specious.

Defendant's remaining contentions are also without merit. Her claim that the [*6]Prenuptial Agreement was torn up and thrown into the ocean on their honeymoon is belied by plaintiff's production of an original signed copy. Similarly, defendant's assertion that the Agreement should be set aside because she and plaintiff resided together after it was executed is distinguishable from the cases that she cites for that proposition, since those cases address separation agreements, where the parties resumed cohabitation after executing the agreement (see e.g. Katz v Beckman, 302 AD2d 561, 562, 756 NYS2d 258 [2d Dept 2003], lv denied 100 NY2d 510, 766 NYS2d 163 [separation agreement was upheld under circumstances where the wife failed to explain why, if she and the husband had intended to abandon the separation agreement by resuming marital relations, she signed a memorandum acknowledging the existence of the separation agreement nine years later]; Mullen v Mullen, 260 AD2d 452, 688 NYS2d 208 [2d Dept 1999] [no triable issues of fact existed as to whether, after executing the separation agreement, the parties resumed the marital relationship and exhibited the intention to abandon the agreement]). Here, in contrast, the parties executed a prenuptial agreement which, by definition, precedes the marriage and cohabitation as husband and wife.


Accordingly, for the above discussed reasons, defendant's application to set aside the parties' Prenuptial Agreement is denied.

This shall constitute the decision and order of this Court.

E N T E R:

Hon. Jeffrey S. Sunshine



Footnote 1:The other issues raised in this motion have already been resolved.

Footnote 2:The Agreement provides, as is relevant herein, that upon the commencement of a divorce action: "[M]aintenance, including temporary maintenance, shall be paid in the amount determined by a court of competent jurisdiction for no greater than a period of five (5) years unless the parties have been married for more than twenty (2) years, in which event, there shall be no limit on the time a court may grant maintenance . . ." (Prenuptial Agreement, Spousal Maintenance, para 6, p 4).