R.S. v L.F.S.
Annotate this Case
[*1]
R.S. v L.F.S.
2018 NY Slip Op 28278
Decided on September 12, 2018
Supreme Court, Westchester County
Colangelo, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Decided on September 12, 2018
Supreme Court, Westchester County
R.S., Plaintiff,
against
L.F.S., Defendant.
64755/2017
Kommer, Bave & Ollman, LLP
Attorneys for Plaintiff
145 Hugenot Street, Ste. 402
New Rochelle, NY 10801
Garr Silpe, P.C.
Attorneys for Defendant
777 Third Avenue, 32nd Floor
New York, NY 10017
John P. Colangelo, J.
Plaintiff's Order to Show Cause (Motion Sequence No.1) and
Supporting Papers: 1 - 117
Defendant's Affidavits In Opposition: 118 - 176
Plaintiff's Affidavit in Reply: 177 - 186
Plaintiff's Order to Show Cause (Motion Sequence #2) and
Supporting Papers: 187 - 346
Defendant's Affidavit in Opposition: 347 - 352
Plaintiff's Reply: 353 - 361
In this matrimonial action, plaintiff R. S. ("Plaintiff" or the "Husband") moved against defendant L. F. S. ("Defendant" or the "Wife") to set aside an alleged prenuptial agreement, which Defendant maintains was entered into by the parties on August 16, 2002 (the "Agreement" or the "Prenup"). Plaintiff's principal contention is that the Agreement is invalid because he did not sign the Agreement presented to the Court and if he is found to have signed it, the Agreement is nonetheless deficient for failure to contain a proper acknowledgment in the form prescribed by the Domestic Relations Law ("DRL"). Plaintiff also maintains that even if properly signed and acknowledged, the Agreement is invalid as unconscionable, fraudulent and or a product of overreaching and duress. Defendant opposes Plaintiff's motion in all respects, and seeks to enforce the terms of the Agreement.
On the initial return date of the motion, the Court ordered that a hearing be held, limited to the issue of whether the Agreement was in fact executed by the parties. The Court also permitted the parties to, after the hearing concluded, brief the issue of whether the form of acknowledgment used in the Agreement was improper, thereby rendering the Agreement a nullity, and the parties have done so. Based on the motion and opposition papers previously submitted, the Court will also decide the issues relating to whether the Agreement should be vacated for the other reasons adduced by Plaintiff. Finally, the Court will also determine, on the papers submitted by the parties, whether an award to Plaintiff of pendente lite counsel fees is warranted.
The Hearing
The hearing with respect to the Agreement (the "Hearing") was held over two days, on May 10 and June 4, 2018. Both parties were represented by counsel throughout. Plaintiff and Defendant each testified at length, and a number of documents were admitted into evidence. Each party also called non-party witnesses. Plaintiff called his brother, James S.. Defendant called Paula Hammel, a former employee with the Bronxville branch of the HSBC bank who allegedly witnessed the parties' execution of the Agreement, and Defendant's friends [*2]Theresa Ryan and Julie DeGenaro; Dennis Ryan, who qualified as an expert in the field of forensic document examination, also testified for Defendant.
Testimony of the Parties
Each party testified to and essentially agreed upon certain rudimentary background facts. The parties met over thirty years ago and started dating in high school. They were first engaged in late 1999 and planned to marry in 2001, but Plaintiff broke off the engagement after extensive wedding plans had been made and monies spent by Defendant's family. The parties nonetheless kept in touch and rekindled their relationship in or about June 2002. In or around early August 2002, the parties learned that Defendant was pregnant and they planned to marry, setting August 18, 2002 as their wedding date. The wedding was to take place at the house and property of Defendant's grandfather in Mt. Kisco, New York.
Soon after Defendant realized that she was pregnant, the parties saw Defendant's OBGYN who administered a sonogram and found but a faint heartbeat; given the very early stage of the pregnancy, the parties were instructed to return several days later for another sonogram. They returned on August 16, 2002, and after an examination and sonogram, were advised by the obstetrician that Defendant had miscarried; they were told to return later that afternoon for an in-office surgical procedure. The parties' testimony with respect to subsequent events then markedly diverges.
Defendant's Testimony Concerning the Agreement
Defendant testified - - contrary to Plaintiff's rendition of the facts as discussed below (see discussion infra at 6-8) - - that the parties' discussed a possible prenuptial agreement on several occasions prior to August 16, 2002, and took action to achieve it. According to Defendant, she first mentioned the possibility of a prenuptial agreement to Plaintiff in or around June 2002, shortly after their renewed romance. Particularly in light of Plaintiff's prior conduct in canceling their previous wedding ceremony, Defendant's parents and grandfather believed that a prenuptial agreement was needed in order to protect assets that she might receive from them. It should be noted that Defendant further testified to her own concerns in view of the fact - - not contradicted by Plaintiff - - that before their engagement, she gave Plaintiff $600,000 in order for him to pay a gambling debt. Plaintiff told Defendant that he had "no problem" with a prenuptial agreement. Defendant advised him that her uncle, Norman Lawi (now deceased), was an attorney and would draft the necessary papers.
Once drafted by Mr. Lawi, Defendant delivered the proposed agreement to Plaintiff at his apartment on August 8, 2002. According to Defendant, Plaintiff told her then that he was "looking forward" to signing it in order to prove to her and her family that he "was not marrying her for money." Defendant advised Plaintiff that he should have an attorney review it, and suggested Plaintiff's uncle, Robert C., a local attorney. Plaintiff declined; he told Defendant that he did not want his family to know about any prenuptial agreement.
Defendant then recounted the events of August 16, 2002. The parties initially planned to meet Mr. Lawi at his office in Manhattan immediately following their obstetric appointment and sign the Agreement there. However, after they learned from the doctor that the five to seven week pregnancy was not viable and that Defendant would undergo a procedure that same afternoon, they decided not to travel to Manhattan from the obstetrician's Bronx office. Instead, with the wedding just two days away, they decided to proceed to a local bank - - where a [*3]notary would surely be at hand - - and sign the prenuptial agreement prepared by Mr. Lawi there. They elected to use the HSBC bank branch in Bronxville because they both maintained accounts there, it was nearby Defendant's apartment, and Plaintiff was familiar with some of the people who worked there. When they arrived at the bank, they were assisted by two women, Ms. Victoria Klinkowitz, who served as the notary, and Ms. Paula Hammel, who later testified at the Hearing and who served as a witness to the Agreement.
According to Defendant, each party identified himself and herself to both Ms. Hammel and Ms. Klinkowitz before signing. Defendant signed first, and used her middle initial; for the sake of consistency, either Ms. Hammel or Ms. Klinkowitz suggested that Plaintiff sign using his middle initial as well. The parties signed duplicate originals. Plaintiff then took both copies of the six page Agreement and kept them. The parties left the bank, had a bite to eat, and returned to the doctor's office. Significantly, between the time that Plaintiff received the draft Agreement on August 8 and the date it was signed, he never asked any questions of her about it, and as far as Defendant knew, never asked to speak to an attorney about it and never asked Defendant for any financial documents.
Plaintiff makes much of the evidence adduced at trial concerning the subsequent status and treatment by Defendant of the allegedly signed Agreement. Indeed, Defendant's conduct can be characterized as somewhat unusual. Defendant testified that after the Agreement was signed, Plaintiff took both originals and Defendant did not see them for several years; she did not receive a copy and no copy was provided to Mr. Lawi or to any of Defendant's relatives. According to Defendant, she subsequently stumbled upon the two originals of the Agreement in or around 2012 when she saw them in an open lock box in the closet of the parties' bedroom. She took them, and soon thereafter gave them to her friend, Theresa Ryan, "for safekeeping." After Defendant was served with process in this action, she retrieved the Agreement from Ms. Ryan and kept it in various locations, including the trunk of her car. Ms. Ryan testified at the Hearing and essentially confirmed Defendant's account as it related to her involvement. The Agreement was then provided to and reviewed by Defendant's counsel and later the forensic expert, Dennis Ryan. During that review process, the two Agreements were apparently unstapled and restapled, a fact which Plaintiff's counsel harped upon during her counsel's cross-examinations of Defendant, Theresa Ryan and Dennis Ryan.
The wedding took place on August 18, 2002, two days after the Agreement was signed. According to Defendant, on the wedding day she did not meet or even see Plaintiff from the time she arrived at her grandfather's house that morning until the wedding ceremony; she remained closeted in one bedroom with her bridal party and friends, one of whom, Julie Degenaro, testified at the Hearing and confirmed that Defendant was always with her, and never encountered Plaintiff. Defendant denied that she presented Plaintiff with any documents to sign on their wedding day; the Katubah (a Jewish marriage contract) and the marriage license were signed by each of the parties in separate rooms.
Plaintiff's Testimony Concerning the Agreement
Needless to day, Plaintiff's testimony concerning the preparation and alleged execution of the Agreement differed markedly from Defendant's version of events. First, as far as any discussion between the parties of a potential prenuptial agreement in concerned, Plaintiff's testimony was, to put it mildly, all over the lot. He first denied that any such discussions took [*4]place, then stated that the issue may have come up before June 2002, then conceded on cross examination that the issue arose and was discussed by the parties sometime in June or July 2002. Plaintiff testified that Defendant told him that her relatives - - her parents and her grandfather in particular - - were pressuring her to have a prenuptial agreement. However, Plaintiff claimed that in the period leading up to the wedding, Defendant never asked him to sign anything.
Plaintiff's testimony recounting the events for the period of time after the parties left the obstetrician's office on August 16, 2002 was at times confusing and confounding. Plaintiff testified on direct examination that following the OBGYN visit, the parties proceeded to Plaintiff's apartment to console one another and returned to the doctor's office in the late afternoon; he could not recall making any other stops, particularly a stop at the HSBC bank branch in Bronxville. However, Plaintiff testified at a deposition taken shortly before the Hearing that he did recall going to HSBC on August 16, and testified on cross examination and on redirect examination during the Hearing that he might have gone, but that he definitely did not sign the Agreement there or anywhere else on August 16. Parenthetically, it should also be noted that Plaintiff testified on cross-examination that when he saw the alleged witness to the Agreement, Ms. Hammel, during the Hearing, he recognized her as a bank employee and that he knew her from his prior banking transactions and relationship with the HSBC branch at which Ms. Hammel worked.
As far as the wedding day events are concerned, Plaintiff testified on direct examination about a document that he claims that he did sign that day - - an hour or so before the parties' nuptials. Plaintiff testified that he arrived at Defendant's grandfather's house at around 8:30 A.M., and encountered Defendant a least three times before the ceremony - - first and second with the florist and the photographer, and a third time within an hour of the wedding. During that third meeting, Defendant asked Plaintiff to walk with her to the porch in the back of the house. She then presented him with a one page piece of paper; she asked him to sign, saying that it was "no big deal" but something that her grandfather wanted done. No notary was present, and there was no discussion of a prenuptial agreement. According to Plaintiff, the page contained one or two typewritten paragraphs, and a signature line. Although taken aback, Plaintiff signed the document, believing that it "could not have been important" since it was "only one page." Soon thereafter, the parties were married in a religious ceremony. Later that day or the next day, Plaintiff received a copy of that signed sheet; he placed the paper in a locked filing box in his residence. When he began to contemplate a divorce action, he looked for the paper, and it was gone.
At the Hearing, Plaintiff was shown Plaintiff's Exhibit 5, a copy of the Agreement. He testified that he saw the Agreement for the first time when he met with his attorney after the commencement of this action. Shown what purported to be his signature on the signature page, the next to last page of the document, Plaintiff conceded that it "could be" his signature, but later denied that it was, claiming that it probably was not since the signature included his middle initial "M", which he rarely used when signing his name. Significantly, he did not identify the signature page on Exhibit 5 as the page he purportedly signed on the porch on the wedding day.
Testimony of Paula Hammel
Defendant called Paula Hammel, a retired bank employee of the HSBC Bronxville branch. Ms. Hammel's signature appears on the Agreement as a witness to the [*5]signatures of Plaintiff and Defendant. Ms. Hammel testified that she was an employee of HSBC for over 33 years, including a stint in the Bronxville branch from 1988 to 2007. Upon seeing Plaintiff in the Courtroom, she recognized him as a customer of the bank during her employment there.
Ms. Hammel was shown the duplicate originals of the Agreement (Pl. Exhs. 6 and 7) and she identified her signatures. She stated that while employed at HSBC, she was frequently asked to witness signatures as part of her duties at the bank. Although she had no specific recollection of the execution of the Agreement at issue here, she stated that she never signed as a witness to someone's signature without actually seeing that person sign the document. Ms. Hammel also recognized the signature of the person who appears on the Agreement as the Notary Public, Ms. Klinkowitz. She testified that Ms. Klinkowitz served as the HSBC Bronxville branch bank manager for ten years, and that Ms. Klinkowitz was working with her at the Bronxville branch in 2002. Ms. Hammel testified that she never observed Ms. Klinkowitz notarize a person's signature without that person being present.
Testimony of Defendant's Expert Witness, Dennis Ryan
Dennis Ryan was called by Defendant and qualified as an expert forensic document examiner. Mr. Ryan testified that he was retained to examine the signatures of Plaintiff contained on the duplicate original Agreements (Pl. Exhs. 6 and 7) and to compare them with known signatures of Plaintiff (Deft. Exhs. A-2 to K-10). Mr. Ryan explained in some detail the procedures he used to compare the Agreement's signatures with what was represented to him to be known signatures of Plaintiff contained on Defendant's Exhibits K-1 through K-10. It should be noted that Plaintiff did not challenge the authenticity of such "known" signatures. After conducting his examination and comparison, Mr. Ryan concluded that it was "highly probable (virtually certain)" that Plaintiff signed both duplicate originals of the Agreement. (Ryan Report, Deft. Exh. H at p. 7, "Findings"). Mr. Ryan also confirmed that he saw no evidence that Plaintiff's signatures had been traced in any way.
In addition, Mr. Ryan also performed what he described as an "indentation analysis" of the Agreements, and determined that the page following the signature page on each document was present at the time that each of the signatures was affixed to the signature page of the documents. (Id.). In other words, the signature page was not removed, signed as a stand alone, one page document, and then inserted into the remainder of the Agreement.
Conclusion with Respect to the Hearing
The testimony of the forensic expert Dennis Ryan puts the final nail in the coffin of Plaintiff's incredible tale. That expert testimony - - unchallenged by any opposing expert - - makes clear that in all likelihood, the Agreement was signed by Plaintiff not once, but two times.
Plaintiff's insinuation during the Hearing through his counsel's cross examinations of Defendant, Mr. Ryan, and Ms. Ryan, that the fact that the Agreement, once retrieved by Defendant, was unstapled, restapled, and kept in different locations somehow taints its bona fides is much ado about nothing. After all, Plaintiff's principal contention from the beginning is that he never signed the Agreement, not that it was in fact signed and then altered in some fashion. And if Plaintiff is suggesting that the signature page was the one page that Plaintiff claims he signed an hour before the wedding, that veiled contention was belied by the expert Ryan's indentation analysis; at the very least, a two page document - - not a one page fragment testified to by [*6]Plaintiff - - had to be present when not only Plaintiff, but Defendant, Ms. Hammel, and the Notary affixed their signatures.
In addition, Plaintiff's version of events is at once self contradictory and wars with common sense. Plaintiff conceded that he knew before August 2002 that Defendant, thanks to the hectoring of her by her family, was interested in having a prenuptial agreement; he also initially testified that the signature which appears on the Agreement looked familiar and could be his, and with good reason: a forensic expert determined that it was. In the face of his own testimony and this expert determination, Plaintiff would nonetheless have the Court believe that Defendant, in league with two bank employees - - one a notary public - - who had no stake in the venture, conspired to somehow affix a fraudulent signature of Plaintiff to an the Agreement and then lie about it. Unfortunately, for Plaintiff, this far fetched version of events is belied not only by an expert's handwriting evaluation, but by the testimony of Ms. Hammel, a disinterested witness who testified that she would never sign as a witness if the signatory was not present, the implied representation of a bank notary public who affixed her imprimatur to the Agreement attesting that it was Plaintiff who signed it , as well as the testimony of Defendant. This Court can thus give no credence to such a rendition.
In short, Defendant's version of events is far more plausible and her testimony more credible. Both parties knew of the potentiability of a prenuptial agreement. It stands to reason that one would be drafted - - here, by an attorney/relative, as is often the case - - and presented to Plaintiff shortly before the wedding day, also not unusual in the realm of prenuptial agreements. The fact that Plaintiff now regrets or forgets that he signed it is of no moment. As Defendant's more credible and conceivable rendition indicates and as her expert confirmed, Plaintiff in fact signed the Agreement and, as demonstrated above and below, is now bound by its terms.
The Agreement Is Not Infirm as Unfair, Unconscionable or Overreaching
Plaintiff's argument that the Agreement should be declared invalid because it is unfair or unconscionable is similarly meritless. As reflected in the statute and cases, prenuptial agreements are a favorite of matrimonial law. Section 236, Part B(3) of the Domestic Relations Law specifically provides for enforcement of marital agreements made both before and during the marriage. As the statute provides:
"Agreement of the parties. An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Notwithstanding any other provision of law, an acknowledgment of an agreement made before marriage may be executed before any person authorized to solemnize a marriage pursuant to subdivisions one, two and three of section eleven of this chapter. Such an agreement may include (1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect again t]he provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for the custody, care, education and maintenance of [*7]any child of the parties, subject to the provisions of section two hundred forty of this article. Nothing in this subdivision shall be deemed to affect the validity of any agreement made prior to the effective date of this subdivision." (Emphasis supplied).
This section reflects the strong public policy in New York "favoring individuals ordering and deciding their own interests through contractual arrangements," Anonymous v. Anonymous, 123 AD3d 581, 582 [1st Dept. 2014] (quoting Matter of Greiff, 92 NY2d 341, 344 [1998]), and the guiding principle that a "prenuptial agreement is presumed to be valid and controlling unless and until the party challenging it meets his or her very high burden to set it aside." Gottlieb v. Gottlieb, 138 AD3d 30, 36 (1st Dept. 2016). "Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions." Christian v. Christian, 42 NY2d 63, 71-72 [1977]. Thus, New York courts will presume that a duly executed marital agreement is valid and binding on the parties unless and until the party challenging it meets his or her very high burden to set it aside. (See Bloomfield v. Bloomfield, 97 NY2d 188, 193 [2001]); Scheinkman, NY Law of Dom. Rel., Vol. 11 at 180-182).
Nonetheless, it is well-settled that "[a]n agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse." (Lombardi v. Lombardi, 127 AD3d 1038, 1041 [2d Dept. 2015], quoting Bibeau v. Sudick, 122 AD3d 652, 654-655 [2d Dept. 2014]; see Matter of Fizzinoglia, 118 AD3d 994, 995 [2d Dept. 2014], lv granted 24 NY3d 908 [2014]). The burden of proof is on the party seeking to invalidate the agreement. (Weinstein v. Weinstein, 36 AD3d 797 [2d Dept. 2007]; see Lombardi v. Lombardi, 235 AD2d 400 [2d Dept. 1997]; Forsberg v. Forsberg, 219 AD2d 615 [2d Dept. 1995]). Such an agreement may be invalidated if the party challenging it demonstrates that it was the product of fraud, duress, or other inequitable conduct (see Christian v. Christian, 42 NY2d 63, 73 (1997); Cioffi-Petrakis v. Petrakis, 103 AD3d 766, 767 (2d Dept. 2013); Petracca v. Petracca, 101 AD3d 695, 699 (2d Dept. 2012).
However, in light of the sanctity typically accorded signed and acknowledged written agreements, the law is clear that the "burden to show that the agreement was the result of fraud or overreaching, or that its terms were unconscionable" is squarely upon the shoulders of the party challenging it. Chankis v. McIntyre, 5 AD3d 344 (2d Dept. 2004). Moreover, the cases generally hold that one deficiency, standing alone, is usually an insufficient basis to void a properly executed prenuptial agreement. For example, as the Second Department held in Matter of Barabash, 84 AD3d 1363, 1364 (2d Dept. 2011), "[t]he fact that she did not have independent counsel, without more, did not constitute grounds to nullify the agreement." See also Forsberg v. Forsberg, 219 AD2d 615 (2d Dept. 1995) . Similarly, a spouse's failure to disclose his or her assets as part of the agreement does not, in and of itself, serve as a basis to nullify it. Eckstein v. Eckstein, 129 AD2d 552 (2d Dept. 1987); Panossian v. Panpssian, 172 AD2d 811 (2d Dept. 1991). Even lack of English language proficiency by the spouse challenging the agreement may be insufficient, without more, to override the general rule of enforcability unless such lack of [*8]proficiency is clearly shown and such spouse lacked the pertinent documents translated or explained to her. See Maines Paper and Food Service, Inc. v. Adel, 256 AD2d 760 (3d Dept. 1998); Panossian v. Panossian, 172 AD2d 811 (2d Dept. 1991). Nor is an abbreviated time period for review dispositive in and of itself. See Scheinkman, New York Law of Dom. Rel., § 6:10. Instead, it is more often a combination of factors that leads a court to consider that fraud, unconscionability or overreaching sufficient to overturn the prenuptial agreement may have been afoot.
Plaintiff has clearly failed to discharge his burden here. Put simply, in the instant case, factors that would justify the extraordinary step of invalidating a prenuptial agreement are manifestly absent.
First and foremost, the Court has found, after a full evidentiary Hearing, that the instant Agreement was properly signed by Plaintiff (see discussion supra at 3-11), and his signature acknowledged by a notary public using an acknowledgment form that comports with the statutory requirements (see discussion infra at 17-25). Moreover, since Plaintiff maintains that he did not recall doing so, he is not in a position to challenge the rendition of the events proffered by Defendant leading up to and including the parties' execution of the Agreement. Such rendition depicts a scenario common to many valid and judicially sanctioned prenuptial agreements: a scenario in which the party with assets to protect - - here, Defendant - - takes the laboring oar in having an agreement drafted and signed, so that such assets are in fact protected, while the other party consents rather than exercise the always available option, to refuse to sign or call the wedding off.
According to Defendant's Affidavit In Opposition and her testimony at the Hearing, the parties first discussed a prenuptial agreement several weeks before the Agreement was signed - - a fact which Plaintiff grudgingly acknowledged. Defendant then asked her uncle, Norman Lawi, an attorney, to prepare a draft agreement, which he did. When presented with the draft agreement, Defendant suggested to Plaintiff that he consult an attorney, perhaps his uncle, local attorney Robert C., to review the draft; Plaintiff refused, citing a desire to keep the Agreement secret from his family so as to avoid "embarrassment." Under these circumstances, Plaintiff cannot plausibly claim that the Agreement should be voided due to his self-imposed lack of representation. Indeed, cases have held that even a total lack of representation, standing alone, proves insufficient. See Barabash v. Barabash, 84 AD3d 1363 (2d Dept. 2011) ("The fact that she did not have independent counsel without more, does not constitute grounds to nullify the agreement."); Barocas v. Barocas, 94 AD3d 551 (1st Dept. 2012); Smith v. Walsh-Smith, 66 AD3d 534 (1st Dept. 2009).
In addition, the terms of the Agreement are not unconscionable or the result of overreaching or duress in view of the circumstances of the parties at the time the Agreement was signed. As Plaintiff conceded, he knew in advance that Defendant's family favored a prenuptial agreement in order to protect the family's assets which might someday be acquired by Defendant - - which the provisions of the Agreement itself reflect. (Agreement, Exhs 6 and 7, pp. 2-3). When reviewing prenuptial or post nuptial agreements, the courts consistently take a narrow view of the doctrine of unconscionability. As the Court of Appeals noted in the leading case of Christian v. Christian, 42 NY2d 63, 71 (1977), an unconscionable agreement is one that "no person in his senses and not under delusion would make on the one hand, and no honest or fair [*9]person would accept on the other." Accordingly, whether on the grounds of unconscionability or overreaching, an agreement will not be overturned "merely because, in retrospect, some of its provisions were improvident or one-sided." Cioffi-Petrakis v. Petrakis, 72 AD3d 868, 869 (2d Dept. 2010); Golfinopoulos v. Golfinopoulous, 144 AD2d 537, 538 (1st Dept. 1988) ("[C]ourts will not set aside an agreement on the grounds of unconscionability simply because it might have been improvident".).
Moreover, the parties knew each other and their financial circumstances for a number of years prior to the execution of the Agreement. Indeed, as Defendant testified, uncontroverted by Plaintiff, she advanced him over half a million dollars in order to pay his gambling debts.Accordingly, Plaintiff cannot plausibly contend that he did not know of the parties' disparity of wealth at the time he entered into the Agreement. In any event, the Agreement does list the parties' then current assets - - a list which, as the Agreement states, Plaintiff was given "ample opportunity" to consult about and "obtain the advice of an attorney of [his] choice". (Agreement, Pl. Exhs. 6 and 7 at p. 1).
Nor will, as here, the allegation of an unequal division of assets be sufficient to nullify a prenuptial agreement, and with good reason: absent a disparity of economic resources as between the parties, a prenuptial agreement may never have been contemplated, much less drafted and signed. That is, the motivating factor behind any such agreement is generally preservation of the wealthier party's separate assets rather than the chimera of creating a future harmonious division of equal resources. See Cioffi-Petrakis v. Petrakis, 72 AD3d 868, 869 (2d Dept. 2010) ("[S]imply alleging an unequal division of assets is not sufficient to establish unconscionability."); Cosh v. Cosh, 45 AD3d 798, 799 (2d Dept. 2007).
In the instant case the parties clearly entered into the Agreement and the marriage with a disparity in financial resources which Plaintiff realized and may well have been embarrassed by; as Defendant testified, Plaintiff refused to show the draft agreement to his family because he did not want them to know that he was signing a prenuptial agreement. Obviously, the unstated but apparent purpose of the Agreement was the legitimate goal of retaining that disparity rather then leveling the economic playing field. In any event, in the instant case, the Agreement states that it does in fact contain "to the best of each party's ability and recollection" a list of "the current assets and liabilities of [each] party." (Agreement, Pl. Exhs. 6 and 7 at p. 4).
Parenthetically, the Court notes that Plaintiff's claim that if the Agreement stands, he might become a public charge is of no moment. As Plaintiff testified during the Hearing, , he is a college graduate and was employed during most of the marriage. No facts have been adduced to show that he is incapable of present or future gainful employment.
In short, Plaintiff has failed to adduce sufficient facts to sustain his burden of proving that the Agreement should be set aside.The presumption of legitimacy that hedges prenuptial agreements thus remains undisturbed in the instant case.
The Form of Acknowledgment of the Parties' Signatures
In a last ditch effort to evade the consequences of the Agreement, Plaintiff pins his hopes on what might best be characterized as a technicality: he maintains that since the form of acknowledgment used in the Agreement by the notary, Ms. Klinkowitz, does not strictly comply with the letter of the Real Property Law provisions that obtained at the time the Agreement was [*10]signed - - provisions imported into the evaluation of prenuptial agreements by DRL 236(B)(3) - - the entire Agreement is forfeit.
Plaintiff principally relies upon the 2013 Court of Appeals decision of Galetta v. Galetta, 21 NY3d 186 (2013). In Galetta, the Court of Appeals held the prenuptial agreement at issue there invalid because the acknowledgment form used for the signature of one of the parties ran afoul of the Real Property Law provisions that obtained at the time. However, as discussed more fully below, Galetta is, upon analysis, at once distinguishable from the facts herein, and supportive of the conclusion that the acknowledgment form used in the Agreement in the instant case, albeit not in exact conformity with a the letter of the Real Property Law, nonetheless passes statutory muster. Both Galetta and the cases decided before and after it stand for the proposition that substantial rather than the slavish compliance with the strict terms of the statutory form of acknowledgment is all that is required under the DRL; upon analysis, the acknowledgment form used in the instant case is well within those statutory boundaries. Galetta itself so suggests.
DRL § 236(B)(3) provides in pertinent part as follows:
At the time that the prenuptial agreement at issue in Galetta was signed, Section 291 of the Real Property Law (the "RPL"), which governed the "manner required to entitle a deed to be recorded" (DRL § 236B(3)), prescribed that any deed be "duly acknowledged by the person executing the same, or proved as required by this chapter" in order to be recorded (Galetta, 21 NY3d 191, quoting then § 291 of the Real Property Law). The Galetta Court interpreted two other provisions of the RPL - - § 292 and § 303 - - as setting forth the requisite form of acknowledgment that had to be used for the recording of the deed so that it would be "duly acknowledged" - - a form of acknowledgment that would satisfy the two essential objectives of solemnity and identity as articulated by the Court: that the party signing the document openly acknowledge to the notary public or other officer that he or she signed the document (RPL § 292), and that the notary either "knows or has satisfactory evidence that the person making it is the person described in and who executed such instrument." (RPL § 303) (Galetta, 21 NY3d at 192).
As the Court stated:
The acknowledgment requirement fulfills two important purposes. First, "acknowledgment serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person" (Matisoff, 90 NY2d at 133). Second, it necessarily imposes on the signer a measure of deliberation in the act of executing the document. Just as in the case of a deed where the law puts in the path of the grantor "formalities to check haste and foster reflection and care . . . [h]ere, too, the formality of an acknowledgment underscores the weighty personal choices to relinquish significant property or inheritance rights, or to resolve important issues concerning child custody, education and care" (id. at 136 [internal quotation marks and citation omitted]"). Galetta, 21 NY3d at 191-192. (Emphasis added).
That appears straightforward enough. The Court in Galetta however, confronted an unusual situation. It was constrained to examine two different forms of acknowledgment, each signed at different times and places. The Court held that the wife's acknowledgment was in compliance with the statute's requirements, while the husband's fell short.
The form of acknowledgment used by the wife's notary - - which, parenthetically, bears a strong resemblance to the acknowledgment form used in the Agreement at issue in the instant case - - was deemed acceptable by the Court since it satisfied the two essential criteria for an acknowledgment that the Court had previously articulated. As the Court stated,
At the time the parties here signed the prenuptial agreement in 1997, proper certificates of acknowledgment typically contained boilerplate language substantially the same as that included in the certificate accompanying the wife's signature: "before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same." The "to me known and known to me to be the person described in the document" phrase satisfied the requirement that the official indicate that he or she knew or had ascertained that the signer was the person described in the document. The clause beginning with the words "and duly acknowledged" established that the signer had made the requisite oral declaration.
Id. at 193. (Emphasis added).
Conversely, the acknowledgment form used by the Galetta husband's notary was found wanting because it "inexplicably omitted" the phrase "to me known and known to me." The Court reasoned that "[a]bsent the omitted language, the certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement." (Id at 193). In light of this deficiency the Court of Appeals held the certificate of acknowledgment of the husband's signature defective and therefore the prenuptial agreement invalid since it did not comport with the terms of DRL § 236(B)(3).
As the Galetta Court noted, shortly after the parties in that case signed their prenuptial agreement in 1997, the Real Property Law was amended; a new section, § 309-a was added to the RPL which provides that a "certificate of acknowledgment" must read as follows "or conform substantially" (Galetta, 21 NY3d at 199) with the form as set forth in the statute. As RPL § 309-a (1) provides
State of New York)
County of . . . . . . . . . . )
On the ........... day of ................ in the year ....... before me, the undersigned, [*11]personally appeared ........., personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
(RPL § 309-a 01) (Signature and office of individual taking acknowledgment)." (Emphasis added).
In the instant case, even a cursory examination of the acknowledgment form used for both signatures in the Agreement at issue - - an Agreement signed in 2002 - - reveals that it does not precisely track the language of the statutorily prescribed form. As the acknowledgment form used herein (Pl. Exhs. 6 and 7) provides,
"STATE OF NEW YORK)
COUNTY OF)
On theday ofbefore me personally cameto me known and known to me to be the individual described in, and who executed the foregoing instrument, and duly acknowledged to me that he executed the same.
As noted above, the acknowledgment used in the Agreement in the instant case is essentially the same form signed by the wife in Galetta and deemed acceptable by that Court. (See Galetta, 21 NY3d at 193). Nonetheless, Plaintiff Husband herein, purporting to rely on Galetta, argues that since the language of the acknowledgment used in this case is not an exact match to § 309-a(1)'s statutory language, the acknowledgment is deficient and the entire Agreement suspect. Plaintiff's argument, however, suffers from a fatal flaw: it ignores both the language of § 309-a itself and the case law - - including Galetta - - which hold that substantial rather than strict compliance with the statutory form of acknowledgment is all that is required.
First, as noted above, § 309-a itself indicates that substantial rather than exact [*12]compliance with the statutory form is sufficient: "[t]he certificate of acknowledgment. . . must conform substantially with the following form." (Emphasis added). The prescient pre--Galetta Second Department case of Weinstein v. Weinstein, 36 AD3d 797, 798 (2d Dept. 2007) upheld the spirit as well as the letter of §309-a by sustaining a prenuptial agreement which employed an acknowledgment in the form that obtained prior to the enactment of § 309-a because it satisfied the underlying "important purposes" of an acknowledgment as later articulated in Galetta. As the Court held,
****
Contrary to the wife's argument, there is no requirement that a certificate of acknowledgment contain the precise language set forth in the Real Property Law. Rather, an acknowledgment is sufficient if it is in substantial compliance with the statute (see Real Property Law § 309-a[1]; Smith v. Boyd, 101 NY 472, 5 N.E. 319; Schum v. Burchard, 211 App. Div. 125, 206 N.Y.S. 574, affd. 240 NY 577, 148 N.E. 712). "There are two aspects to an acknowledgment: the oral declaration of the signer of the document and the written certificate, prepared by one of a number of public officials, generally a notary public" (Garguilio v. Garguilio, 122 AD2d 105, 106, 504 N.Y.S.2d 502; see Rogers v. Pell, 154 NY 518, 528-529, 49 N.E. 75 Detmer v. Detmer, 248 AD2d 582, 669 N.Y.S.2d 911). Since both aspects were satisfied here, the acknowledgment substantially complied with the requirements of the Real Property Law. The minor discrepancy in the date on which the document was executed was not, in itself, a basis to set aside the agreement. (Emphasis added).
When its turn came, the Galetta Court recognized, explicitly and implicitly, that the use of a form of acknowledgment whose language did not precisely track the statutory language would nonetheless be valid as long as it had within it the "core components" of identity and solemnity (Galetta, 21 NY3d at 194): explicitly by approving the Weinstein holding that the use of the typical pre-§ 309-a acknowledgment form was sufficient (Galetta, 21 NY3d at 194) and implicitly by its approval of such a form used in Galetta by the wife (Id, at 193). Cases following Galetta have also so held, sustaining certificates of acknowledgment in substantial but not precise compliance with the RPL § 309-a formulation. See, e.g., Matter of Koegel, 160 AD3d 11, 21-22 (2d Dept. 2018) ("A proper acknowledgment requires both an oral declaration by the signer of the document made before an authorizing officer and a written certificate of acknowledgment, attached to the agreement, endorsed by an authorized public officer attesting to [*13]the oral declaration. . . However, there is no requirement that a certificate of acknowledgment contain the precise language of the Real Property Law. Rather, an acknowledgment is sufficient if it is in substantial compliance with the statute." (Citations omitted); Defilippi v. Defilippi, 48 Misc 3d 937 (Sup. Ct., West. Co. 2015); B.W. v. R.F., 53 Misc 3d 366 (Sup. Ct., West. Co. 2016).
In the instant case, the certificate of acknowledgment used by the notary Ms. Klinkowitz clearly comports with the essential elements and underlying purposes of § 309-b as recognized in Galetta. Such acknowledgment satisfied the identity component through the notary's statement that the person who signed the document "before me personally came" and was "to me known and known to me to be" the individual who signed it; and it satisfied the solemnity component by stating that such person "duly acknowledged to me that he executed the same." (See Pl. Exhs 6 and 7).
Moreover, the absence in the acknowledgment form used herein of the disjunctive phrase contained in the statutory form, "or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument" (RPL § 309-a (1) emphasis added) - - an alleged deficiency relied upon by Plaintiff - - is of no moment. For, the statute's use of the disjunctive clearly indicates that satisfaction of the identity element of the acknowledgment that would mandate the notary demanding "satisfactory evidence" of identity of the signer would only come into play if the signer was not "known" to the notary. In the instant case, Plaintiff failed to adduce any evidence that he was not "known" to the notary, the bank officer Ms. Klinkowitz. Indeed, the testimony of the witness to Plaintiff's signature is to the contrary. Ms. Hammel, testified at the Hearing that not only would she and Ms. Klinkowitz never witness or notarize a person's signature without that person being present, but that in addition, she recognized Plaintiff as a frequent customer of the bank at the time, and that the notary, like her, had been a branch bank employee of longstanding. In addition, Defendant testified that both she and Plaintiff identified themselves to Ms. Hammel and Ms. Klinkowitz before signing, and Plaintiff confirmed in his testimony that he frequented the HSBC Bronxville branch often and recognized Ms. Hammel as a bank employee (see discussion supra at 5-10).
The Court is also constrained to note that here, unlike in Galetta, a full evidentiary hearing was held, which lay to rest the question of Plaintiff's identity at the time he signed the Agreement; his signature was verified by expert analysis as well as other testimony to be on the Agreement. (See discussion supra at 3-11). In the face of the substantial statutory compliance of the acknowledgment form used herein - - essentially the same form approved in Galetta - - and the evidence adduced in and the conclusions reached after a full evidentiary hearing, to scuttle a comprehensive prenuptial agreement because the acknowledgment form did not slavishly adher to the letter of the statutory language would be the height of exaulting form over substance. This the Court is not prepared to do.
Pendente Lite Counsel Fees
Finally, Plaintiff is seeking pendente lite attorneys fees in the amount of $55,000. As Plaintiff acknowledges, he previously obtained from Defendant, through the good offices of Court Attorney Referee Laurie Sullivan, $17,000 in pendente lite fees, which he contends have been expended, and then some - - a claim that the Court credits in view of the papers that have been submitted on these motions and the conferences and Hearing held since that time. [*14]Defendant opposes Plaintiff's application.
DRL § 237 provides that the Court may award counsel fees to the less monied spouse. As DRL § 237 (a) states, in pertinent part
"In any [matrimonial] action or proceeding . . . the court . . . may direct the person or persons maintaining the action, to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse." (Emphasis added).
As the parties' respective Net Worth Statements and their joint 2016 tax return reflect, Plaintiff has established that he is clearly the less monied spouse. Defendant earns a salary in excess of $100,000 and enjoys significant income from other sources, while Plaintiff is unemployed (See Net Worth Sts., Exh A and B to Plaintiff's Moving Affid.). Plaintiff is therefore presumptively entitled to an interim attorney fee award under DRL § 237.
However, Plaintiff has the capacity to resume gainful employment, which he enjoyed in the past as he testified during the Hearing. Although, as Defendant rightly contends, Plaintiff should have some "skin in the gane," (Sykes v. Sykes, 41 Misc 3d 1061 (Sup. Ct., NY Co. 2013), he has nonetheless demonstrated a need for a modicum of attorneys' fee assistance in order to properly level the playing field so that he eventual outcome of the case is not determined by "the weight of the wealthier litigant's wallet." O'Shea v. O'Shea, 93 NY2d 187, 190 (1999); see also DeCabrera v. DeCabrera-Rosete, 70 NY2d 879 (1987); Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008). In determining the amount of financial assistance to furnish Plaintiff, the Court must also take into account the implications of the instant decision upholding the Prenuptial Agreement - - a decision which will, perforce, significantly reduce the time and expense of litigation as far as the issues of maintenance and equitable distribution are concerned.
Be that as it may, the decision of whether and how much to award a party for counsel fees is within the sound discretion of the court. See Morrissey v. Morrissey, 259 AD2d 472, 473 (2d Dept. 1999) ("The award of reasonable counsel fees is a matter within the sound discretion of the trial court"); Scheinkman, NY Law of Dom. Rel. ¶§ 19.1. In light of the surrounding facts and circumstances of the case, the Court concludes in its discretion that an award to Plaintiff of interim counsel fees in the amount of $15,000 subject to reallocation at trial, would be appropriate here. Defendant shall pay that amount directly to Plaintiff's counsel in two installments; a payment of $7,500 by September 30, 2018 and a second payment of $7,500 by October 15, 2018.
Conclusion
Accordingly, for the reasons stated herein, Plaintiff's motions are denied in all respects except for the award to Plaintiff of pendente lite counsel fees, which is granted in part as set forth above. The Court has considered any contentions of the parties not specifically addressed herein and finds them to be without merit or not worthy of further comment.
The foregoing constitutes the Decision and Order of this Court.
Dated: September 12, 2018
White Plains, New York
Hon. John P. Colangelo
Supreme Court Justice
Decided on September 12, 2018
Supreme Court, Westchester County
R.S., Plaintiff,
against
L.F.S., Defendant.
64755/2017
Kommer, Bave & Ollman, LLP
Attorneys for Plaintiff
145 Hugenot Street, Ste. 402
New Rochelle, NY 10801
Garr Silpe, P.C.
Attorneys for Defendant
777 Third Avenue, 32nd Floor
New York, NY 10017
John P. Colangelo, J.
The following papers were considered by the Court on these motions:
Plaintiff's Order to Show Cause (Motion Sequence No.1) and
Supporting Papers: 1 - 117
Defendant's Affidavits In Opposition: 118 - 176
Plaintiff's Affidavit in Reply: 177 - 186
Plaintiff's Order to Show Cause (Motion Sequence #2) and
Supporting Papers: 187 - 346
Defendant's Affidavit in Opposition: 347 - 352
Plaintiff's Reply: 353 - 361
In this matrimonial action, plaintiff R. S. ("Plaintiff" or the "Husband") moved against defendant L. F. S. ("Defendant" or the "Wife") to set aside an alleged prenuptial agreement, which Defendant maintains was entered into by the parties on August 16, 2002 (the "Agreement" or the "Prenup"). Plaintiff's principal contention is that the Agreement is invalid because he did not sign the Agreement presented to the Court and if he is found to have signed it, the Agreement is nonetheless deficient for failure to contain a proper acknowledgment in the form prescribed by the Domestic Relations Law ("DRL"). Plaintiff also maintains that even if properly signed and acknowledged, the Agreement is invalid as unconscionable, fraudulent and or a product of overreaching and duress. Defendant opposes Plaintiff's motion in all respects, and seeks to enforce the terms of the Agreement.
On the initial return date of the motion, the Court ordered that a hearing be held, limited to the issue of whether the Agreement was in fact executed by the parties. The Court also permitted the parties to, after the hearing concluded, brief the issue of whether the form of acknowledgment used in the Agreement was improper, thereby rendering the Agreement a nullity, and the parties have done so. Based on the motion and opposition papers previously submitted, the Court will also decide the issues relating to whether the Agreement should be vacated for the other reasons adduced by Plaintiff. Finally, the Court will also determine, on the papers submitted by the parties, whether an award to Plaintiff of pendente lite counsel fees is warranted.
The Hearing
The hearing with respect to the Agreement (the "Hearing") was held over two days, on May 10 and June 4, 2018. Both parties were represented by counsel throughout. Plaintiff and Defendant each testified at length, and a number of documents were admitted into evidence. Each party also called non-party witnesses. Plaintiff called his brother, James S.. Defendant called Paula Hammel, a former employee with the Bronxville branch of the HSBC bank who allegedly witnessed the parties' execution of the Agreement, and Defendant's friends [*2]Theresa Ryan and Julie DeGenaro; Dennis Ryan, who qualified as an expert in the field of forensic document examination, also testified for Defendant.
Testimony of the Parties
Each party testified to and essentially agreed upon certain rudimentary background facts. The parties met over thirty years ago and started dating in high school. They were first engaged in late 1999 and planned to marry in 2001, but Plaintiff broke off the engagement after extensive wedding plans had been made and monies spent by Defendant's family. The parties nonetheless kept in touch and rekindled their relationship in or about June 2002. In or around early August 2002, the parties learned that Defendant was pregnant and they planned to marry, setting August 18, 2002 as their wedding date. The wedding was to take place at the house and property of Defendant's grandfather in Mt. Kisco, New York.
Soon after Defendant realized that she was pregnant, the parties saw Defendant's OBGYN who administered a sonogram and found but a faint heartbeat; given the very early stage of the pregnancy, the parties were instructed to return several days later for another sonogram. They returned on August 16, 2002, and after an examination and sonogram, were advised by the obstetrician that Defendant had miscarried; they were told to return later that afternoon for an in-office surgical procedure. The parties' testimony with respect to subsequent events then markedly diverges.
Defendant's Testimony Concerning the Agreement
Defendant testified - - contrary to Plaintiff's rendition of the facts as discussed below (see discussion infra at 6-8) - - that the parties' discussed a possible prenuptial agreement on several occasions prior to August 16, 2002, and took action to achieve it. According to Defendant, she first mentioned the possibility of a prenuptial agreement to Plaintiff in or around June 2002, shortly after their renewed romance. Particularly in light of Plaintiff's prior conduct in canceling their previous wedding ceremony, Defendant's parents and grandfather believed that a prenuptial agreement was needed in order to protect assets that she might receive from them. It should be noted that Defendant further testified to her own concerns in view of the fact - - not contradicted by Plaintiff - - that before their engagement, she gave Plaintiff $600,000 in order for him to pay a gambling debt. Plaintiff told Defendant that he had "no problem" with a prenuptial agreement. Defendant advised him that her uncle, Norman Lawi (now deceased), was an attorney and would draft the necessary papers.
Once drafted by Mr. Lawi, Defendant delivered the proposed agreement to Plaintiff at his apartment on August 8, 2002. According to Defendant, Plaintiff told her then that he was "looking forward" to signing it in order to prove to her and her family that he "was not marrying her for money." Defendant advised Plaintiff that he should have an attorney review it, and suggested Plaintiff's uncle, Robert C., a local attorney. Plaintiff declined; he told Defendant that he did not want his family to know about any prenuptial agreement.
Defendant then recounted the events of August 16, 2002. The parties initially planned to meet Mr. Lawi at his office in Manhattan immediately following their obstetric appointment and sign the Agreement there. However, after they learned from the doctor that the five to seven week pregnancy was not viable and that Defendant would undergo a procedure that same afternoon, they decided not to travel to Manhattan from the obstetrician's Bronx office. Instead, with the wedding just two days away, they decided to proceed to a local bank - - where a [*3]notary would surely be at hand - - and sign the prenuptial agreement prepared by Mr. Lawi there. They elected to use the HSBC bank branch in Bronxville because they both maintained accounts there, it was nearby Defendant's apartment, and Plaintiff was familiar with some of the people who worked there. When they arrived at the bank, they were assisted by two women, Ms. Victoria Klinkowitz, who served as the notary, and Ms. Paula Hammel, who later testified at the Hearing and who served as a witness to the Agreement.
According to Defendant, each party identified himself and herself to both Ms. Hammel and Ms. Klinkowitz before signing. Defendant signed first, and used her middle initial; for the sake of consistency, either Ms. Hammel or Ms. Klinkowitz suggested that Plaintiff sign using his middle initial as well. The parties signed duplicate originals. Plaintiff then took both copies of the six page Agreement and kept them. The parties left the bank, had a bite to eat, and returned to the doctor's office. Significantly, between the time that Plaintiff received the draft Agreement on August 8 and the date it was signed, he never asked any questions of her about it, and as far as Defendant knew, never asked to speak to an attorney about it and never asked Defendant for any financial documents.
Plaintiff makes much of the evidence adduced at trial concerning the subsequent status and treatment by Defendant of the allegedly signed Agreement. Indeed, Defendant's conduct can be characterized as somewhat unusual. Defendant testified that after the Agreement was signed, Plaintiff took both originals and Defendant did not see them for several years; she did not receive a copy and no copy was provided to Mr. Lawi or to any of Defendant's relatives. According to Defendant, she subsequently stumbled upon the two originals of the Agreement in or around 2012 when she saw them in an open lock box in the closet of the parties' bedroom. She took them, and soon thereafter gave them to her friend, Theresa Ryan, "for safekeeping." After Defendant was served with process in this action, she retrieved the Agreement from Ms. Ryan and kept it in various locations, including the trunk of her car. Ms. Ryan testified at the Hearing and essentially confirmed Defendant's account as it related to her involvement. The Agreement was then provided to and reviewed by Defendant's counsel and later the forensic expert, Dennis Ryan. During that review process, the two Agreements were apparently unstapled and restapled, a fact which Plaintiff's counsel harped upon during her counsel's cross-examinations of Defendant, Theresa Ryan and Dennis Ryan.
The wedding took place on August 18, 2002, two days after the Agreement was signed. According to Defendant, on the wedding day she did not meet or even see Plaintiff from the time she arrived at her grandfather's house that morning until the wedding ceremony; she remained closeted in one bedroom with her bridal party and friends, one of whom, Julie Degenaro, testified at the Hearing and confirmed that Defendant was always with her, and never encountered Plaintiff. Defendant denied that she presented Plaintiff with any documents to sign on their wedding day; the Katubah (a Jewish marriage contract) and the marriage license were signed by each of the parties in separate rooms.
Plaintiff's Testimony Concerning the Agreement
Needless to day, Plaintiff's testimony concerning the preparation and alleged execution of the Agreement differed markedly from Defendant's version of events. First, as far as any discussion between the parties of a potential prenuptial agreement in concerned, Plaintiff's testimony was, to put it mildly, all over the lot. He first denied that any such discussions took [*4]place, then stated that the issue may have come up before June 2002, then conceded on cross examination that the issue arose and was discussed by the parties sometime in June or July 2002. Plaintiff testified that Defendant told him that her relatives - - her parents and her grandfather in particular - - were pressuring her to have a prenuptial agreement. However, Plaintiff claimed that in the period leading up to the wedding, Defendant never asked him to sign anything.
Plaintiff's testimony recounting the events for the period of time after the parties left the obstetrician's office on August 16, 2002 was at times confusing and confounding. Plaintiff testified on direct examination that following the OBGYN visit, the parties proceeded to Plaintiff's apartment to console one another and returned to the doctor's office in the late afternoon; he could not recall making any other stops, particularly a stop at the HSBC bank branch in Bronxville. However, Plaintiff testified at a deposition taken shortly before the Hearing that he did recall going to HSBC on August 16, and testified on cross examination and on redirect examination during the Hearing that he might have gone, but that he definitely did not sign the Agreement there or anywhere else on August 16. Parenthetically, it should also be noted that Plaintiff testified on cross-examination that when he saw the alleged witness to the Agreement, Ms. Hammel, during the Hearing, he recognized her as a bank employee and that he knew her from his prior banking transactions and relationship with the HSBC branch at which Ms. Hammel worked.
As far as the wedding day events are concerned, Plaintiff testified on direct examination about a document that he claims that he did sign that day - - an hour or so before the parties' nuptials. Plaintiff testified that he arrived at Defendant's grandfather's house at around 8:30 A.M., and encountered Defendant a least three times before the ceremony - - first and second with the florist and the photographer, and a third time within an hour of the wedding. During that third meeting, Defendant asked Plaintiff to walk with her to the porch in the back of the house. She then presented him with a one page piece of paper; she asked him to sign, saying that it was "no big deal" but something that her grandfather wanted done. No notary was present, and there was no discussion of a prenuptial agreement. According to Plaintiff, the page contained one or two typewritten paragraphs, and a signature line. Although taken aback, Plaintiff signed the document, believing that it "could not have been important" since it was "only one page." Soon thereafter, the parties were married in a religious ceremony. Later that day or the next day, Plaintiff received a copy of that signed sheet; he placed the paper in a locked filing box in his residence. When he began to contemplate a divorce action, he looked for the paper, and it was gone.
At the Hearing, Plaintiff was shown Plaintiff's Exhibit 5, a copy of the Agreement. He testified that he saw the Agreement for the first time when he met with his attorney after the commencement of this action. Shown what purported to be his signature on the signature page, the next to last page of the document, Plaintiff conceded that it "could be" his signature, but later denied that it was, claiming that it probably was not since the signature included his middle initial "M", which he rarely used when signing his name. Significantly, he did not identify the signature page on Exhibit 5 as the page he purportedly signed on the porch on the wedding day.
Testimony of Paula Hammel
Defendant called Paula Hammel, a retired bank employee of the HSBC Bronxville branch. Ms. Hammel's signature appears on the Agreement as a witness to the [*5]signatures of Plaintiff and Defendant. Ms. Hammel testified that she was an employee of HSBC for over 33 years, including a stint in the Bronxville branch from 1988 to 2007. Upon seeing Plaintiff in the Courtroom, she recognized him as a customer of the bank during her employment there.
Ms. Hammel was shown the duplicate originals of the Agreement (Pl. Exhs. 6 and 7) and she identified her signatures. She stated that while employed at HSBC, she was frequently asked to witness signatures as part of her duties at the bank. Although she had no specific recollection of the execution of the Agreement at issue here, she stated that she never signed as a witness to someone's signature without actually seeing that person sign the document. Ms. Hammel also recognized the signature of the person who appears on the Agreement as the Notary Public, Ms. Klinkowitz. She testified that Ms. Klinkowitz served as the HSBC Bronxville branch bank manager for ten years, and that Ms. Klinkowitz was working with her at the Bronxville branch in 2002. Ms. Hammel testified that she never observed Ms. Klinkowitz notarize a person's signature without that person being present.
Testimony of Defendant's Expert Witness, Dennis Ryan
Dennis Ryan was called by Defendant and qualified as an expert forensic document examiner. Mr. Ryan testified that he was retained to examine the signatures of Plaintiff contained on the duplicate original Agreements (Pl. Exhs. 6 and 7) and to compare them with known signatures of Plaintiff (Deft. Exhs. A-2 to K-10). Mr. Ryan explained in some detail the procedures he used to compare the Agreement's signatures with what was represented to him to be known signatures of Plaintiff contained on Defendant's Exhibits K-1 through K-10. It should be noted that Plaintiff did not challenge the authenticity of such "known" signatures. After conducting his examination and comparison, Mr. Ryan concluded that it was "highly probable (virtually certain)" that Plaintiff signed both duplicate originals of the Agreement. (Ryan Report, Deft. Exh. H at p. 7, "Findings"). Mr. Ryan also confirmed that he saw no evidence that Plaintiff's signatures had been traced in any way.
In addition, Mr. Ryan also performed what he described as an "indentation analysis" of the Agreements, and determined that the page following the signature page on each document was present at the time that each of the signatures was affixed to the signature page of the documents. (Id.). In other words, the signature page was not removed, signed as a stand alone, one page document, and then inserted into the remainder of the Agreement.
Conclusion with Respect to the Hearing
The testimony of the forensic expert Dennis Ryan puts the final nail in the coffin of Plaintiff's incredible tale. That expert testimony - - unchallenged by any opposing expert - - makes clear that in all likelihood, the Agreement was signed by Plaintiff not once, but two times.
Plaintiff's insinuation during the Hearing through his counsel's cross examinations of Defendant, Mr. Ryan, and Ms. Ryan, that the fact that the Agreement, once retrieved by Defendant, was unstapled, restapled, and kept in different locations somehow taints its bona fides is much ado about nothing. After all, Plaintiff's principal contention from the beginning is that he never signed the Agreement, not that it was in fact signed and then altered in some fashion. And if Plaintiff is suggesting that the signature page was the one page that Plaintiff claims he signed an hour before the wedding, that veiled contention was belied by the expert Ryan's indentation analysis; at the very least, a two page document - - not a one page fragment testified to by [*6]Plaintiff - - had to be present when not only Plaintiff, but Defendant, Ms. Hammel, and the Notary affixed their signatures.
In addition, Plaintiff's version of events is at once self contradictory and wars with common sense. Plaintiff conceded that he knew before August 2002 that Defendant, thanks to the hectoring of her by her family, was interested in having a prenuptial agreement; he also initially testified that the signature which appears on the Agreement looked familiar and could be his, and with good reason: a forensic expert determined that it was. In the face of his own testimony and this expert determination, Plaintiff would nonetheless have the Court believe that Defendant, in league with two bank employees - - one a notary public - - who had no stake in the venture, conspired to somehow affix a fraudulent signature of Plaintiff to an the Agreement and then lie about it. Unfortunately, for Plaintiff, this far fetched version of events is belied not only by an expert's handwriting evaluation, but by the testimony of Ms. Hammel, a disinterested witness who testified that she would never sign as a witness if the signatory was not present, the implied representation of a bank notary public who affixed her imprimatur to the Agreement attesting that it was Plaintiff who signed it , as well as the testimony of Defendant. This Court can thus give no credence to such a rendition.
In short, Defendant's version of events is far more plausible and her testimony more credible. Both parties knew of the potentiability of a prenuptial agreement. It stands to reason that one would be drafted - - here, by an attorney/relative, as is often the case - - and presented to Plaintiff shortly before the wedding day, also not unusual in the realm of prenuptial agreements. The fact that Plaintiff now regrets or forgets that he signed it is of no moment. As Defendant's more credible and conceivable rendition indicates and as her expert confirmed, Plaintiff in fact signed the Agreement and, as demonstrated above and below, is now bound by its terms.
The Agreement Is Not Infirm as Unfair, Unconscionable or Overreaching
Plaintiff's argument that the Agreement should be declared invalid because it is unfair or unconscionable is similarly meritless. As reflected in the statute and cases, prenuptial agreements are a favorite of matrimonial law. Section 236, Part B(3) of the Domestic Relations Law specifically provides for enforcement of marital agreements made both before and during the marriage. As the statute provides:
"Agreement of the parties. An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Notwithstanding any other provision of law, an acknowledgment of an agreement made before marriage may be executed before any person authorized to solemnize a marriage pursuant to subdivisions one, two and three of section eleven of this chapter. Such an agreement may include (1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect again t]he provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for the custody, care, education and maintenance of [*7]any child of the parties, subject to the provisions of section two hundred forty of this article. Nothing in this subdivision shall be deemed to affect the validity of any agreement made prior to the effective date of this subdivision." (Emphasis supplied).
This section reflects the strong public policy in New York "favoring individuals ordering and deciding their own interests through contractual arrangements," Anonymous v. Anonymous, 123 AD3d 581, 582 [1st Dept. 2014] (quoting Matter of Greiff, 92 NY2d 341, 344 [1998]), and the guiding principle that a "prenuptial agreement is presumed to be valid and controlling unless and until the party challenging it meets his or her very high burden to set it aside." Gottlieb v. Gottlieb, 138 AD3d 30, 36 (1st Dept. 2016). "Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions." Christian v. Christian, 42 NY2d 63, 71-72 [1977]. Thus, New York courts will presume that a duly executed marital agreement is valid and binding on the parties unless and until the party challenging it meets his or her very high burden to set it aside. (See Bloomfield v. Bloomfield, 97 NY2d 188, 193 [2001]); Scheinkman, NY Law of Dom. Rel., Vol. 11 at 180-182).
Nonetheless, it is well-settled that "[a]n agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse." (Lombardi v. Lombardi, 127 AD3d 1038, 1041 [2d Dept. 2015], quoting Bibeau v. Sudick, 122 AD3d 652, 654-655 [2d Dept. 2014]; see Matter of Fizzinoglia, 118 AD3d 994, 995 [2d Dept. 2014], lv granted 24 NY3d 908 [2014]). The burden of proof is on the party seeking to invalidate the agreement. (Weinstein v. Weinstein, 36 AD3d 797 [2d Dept. 2007]; see Lombardi v. Lombardi, 235 AD2d 400 [2d Dept. 1997]; Forsberg v. Forsberg, 219 AD2d 615 [2d Dept. 1995]). Such an agreement may be invalidated if the party challenging it demonstrates that it was the product of fraud, duress, or other inequitable conduct (see Christian v. Christian, 42 NY2d 63, 73 (1997); Cioffi-Petrakis v. Petrakis, 103 AD3d 766, 767 (2d Dept. 2013); Petracca v. Petracca, 101 AD3d 695, 699 (2d Dept. 2012).
However, in light of the sanctity typically accorded signed and acknowledged written agreements, the law is clear that the "burden to show that the agreement was the result of fraud or overreaching, or that its terms were unconscionable" is squarely upon the shoulders of the party challenging it. Chankis v. McIntyre, 5 AD3d 344 (2d Dept. 2004). Moreover, the cases generally hold that one deficiency, standing alone, is usually an insufficient basis to void a properly executed prenuptial agreement. For example, as the Second Department held in Matter of Barabash, 84 AD3d 1363, 1364 (2d Dept. 2011), "[t]he fact that she did not have independent counsel, without more, did not constitute grounds to nullify the agreement." See also Forsberg v. Forsberg, 219 AD2d 615 (2d Dept. 1995) . Similarly, a spouse's failure to disclose his or her assets as part of the agreement does not, in and of itself, serve as a basis to nullify it. Eckstein v. Eckstein, 129 AD2d 552 (2d Dept. 1987); Panossian v. Panpssian, 172 AD2d 811 (2d Dept. 1991). Even lack of English language proficiency by the spouse challenging the agreement may be insufficient, without more, to override the general rule of enforcability unless such lack of [*8]proficiency is clearly shown and such spouse lacked the pertinent documents translated or explained to her. See Maines Paper and Food Service, Inc. v. Adel, 256 AD2d 760 (3d Dept. 1998); Panossian v. Panossian, 172 AD2d 811 (2d Dept. 1991). Nor is an abbreviated time period for review dispositive in and of itself. See Scheinkman, New York Law of Dom. Rel., § 6:10. Instead, it is more often a combination of factors that leads a court to consider that fraud, unconscionability or overreaching sufficient to overturn the prenuptial agreement may have been afoot.
Plaintiff has clearly failed to discharge his burden here. Put simply, in the instant case, factors that would justify the extraordinary step of invalidating a prenuptial agreement are manifestly absent.
First and foremost, the Court has found, after a full evidentiary Hearing, that the instant Agreement was properly signed by Plaintiff (see discussion supra at 3-11), and his signature acknowledged by a notary public using an acknowledgment form that comports with the statutory requirements (see discussion infra at 17-25). Moreover, since Plaintiff maintains that he did not recall doing so, he is not in a position to challenge the rendition of the events proffered by Defendant leading up to and including the parties' execution of the Agreement. Such rendition depicts a scenario common to many valid and judicially sanctioned prenuptial agreements: a scenario in which the party with assets to protect - - here, Defendant - - takes the laboring oar in having an agreement drafted and signed, so that such assets are in fact protected, while the other party consents rather than exercise the always available option, to refuse to sign or call the wedding off.
According to Defendant's Affidavit In Opposition and her testimony at the Hearing, the parties first discussed a prenuptial agreement several weeks before the Agreement was signed - - a fact which Plaintiff grudgingly acknowledged. Defendant then asked her uncle, Norman Lawi, an attorney, to prepare a draft agreement, which he did. When presented with the draft agreement, Defendant suggested to Plaintiff that he consult an attorney, perhaps his uncle, local attorney Robert C., to review the draft; Plaintiff refused, citing a desire to keep the Agreement secret from his family so as to avoid "embarrassment." Under these circumstances, Plaintiff cannot plausibly claim that the Agreement should be voided due to his self-imposed lack of representation. Indeed, cases have held that even a total lack of representation, standing alone, proves insufficient. See Barabash v. Barabash, 84 AD3d 1363 (2d Dept. 2011) ("The fact that she did not have independent counsel without more, does not constitute grounds to nullify the agreement."); Barocas v. Barocas, 94 AD3d 551 (1st Dept. 2012); Smith v. Walsh-Smith, 66 AD3d 534 (1st Dept. 2009).
In addition, the terms of the Agreement are not unconscionable or the result of overreaching or duress in view of the circumstances of the parties at the time the Agreement was signed. As Plaintiff conceded, he knew in advance that Defendant's family favored a prenuptial agreement in order to protect the family's assets which might someday be acquired by Defendant - - which the provisions of the Agreement itself reflect. (Agreement, Exhs 6 and 7, pp. 2-3). When reviewing prenuptial or post nuptial agreements, the courts consistently take a narrow view of the doctrine of unconscionability. As the Court of Appeals noted in the leading case of Christian v. Christian, 42 NY2d 63, 71 (1977), an unconscionable agreement is one that "no person in his senses and not under delusion would make on the one hand, and no honest or fair [*9]person would accept on the other." Accordingly, whether on the grounds of unconscionability or overreaching, an agreement will not be overturned "merely because, in retrospect, some of its provisions were improvident or one-sided." Cioffi-Petrakis v. Petrakis, 72 AD3d 868, 869 (2d Dept. 2010); Golfinopoulos v. Golfinopoulous, 144 AD2d 537, 538 (1st Dept. 1988) ("[C]ourts will not set aside an agreement on the grounds of unconscionability simply because it might have been improvident".).
Moreover, the parties knew each other and their financial circumstances for a number of years prior to the execution of the Agreement. Indeed, as Defendant testified, uncontroverted by Plaintiff, she advanced him over half a million dollars in order to pay his gambling debts.Accordingly, Plaintiff cannot plausibly contend that he did not know of the parties' disparity of wealth at the time he entered into the Agreement. In any event, the Agreement does list the parties' then current assets - - a list which, as the Agreement states, Plaintiff was given "ample opportunity" to consult about and "obtain the advice of an attorney of [his] choice". (Agreement, Pl. Exhs. 6 and 7 at p. 1).
Nor will, as here, the allegation of an unequal division of assets be sufficient to nullify a prenuptial agreement, and with good reason: absent a disparity of economic resources as between the parties, a prenuptial agreement may never have been contemplated, much less drafted and signed. That is, the motivating factor behind any such agreement is generally preservation of the wealthier party's separate assets rather than the chimera of creating a future harmonious division of equal resources. See Cioffi-Petrakis v. Petrakis, 72 AD3d 868, 869 (2d Dept. 2010) ("[S]imply alleging an unequal division of assets is not sufficient to establish unconscionability."); Cosh v. Cosh, 45 AD3d 798, 799 (2d Dept. 2007).
In the instant case the parties clearly entered into the Agreement and the marriage with a disparity in financial resources which Plaintiff realized and may well have been embarrassed by; as Defendant testified, Plaintiff refused to show the draft agreement to his family because he did not want them to know that he was signing a prenuptial agreement. Obviously, the unstated but apparent purpose of the Agreement was the legitimate goal of retaining that disparity rather then leveling the economic playing field. In any event, in the instant case, the Agreement states that it does in fact contain "to the best of each party's ability and recollection" a list of "the current assets and liabilities of [each] party." (Agreement, Pl. Exhs. 6 and 7 at p. 4).
Parenthetically, the Court notes that Plaintiff's claim that if the Agreement stands, he might become a public charge is of no moment. As Plaintiff testified during the Hearing, , he is a college graduate and was employed during most of the marriage. No facts have been adduced to show that he is incapable of present or future gainful employment.
In short, Plaintiff has failed to adduce sufficient facts to sustain his burden of proving that the Agreement should be set aside.The presumption of legitimacy that hedges prenuptial agreements thus remains undisturbed in the instant case.
The Form of Acknowledgment of the Parties' Signatures
In a last ditch effort to evade the consequences of the Agreement, Plaintiff pins his hopes on what might best be characterized as a technicality: he maintains that since the form of acknowledgment used in the Agreement by the notary, Ms. Klinkowitz, does not strictly comply with the letter of the Real Property Law provisions that obtained at the time the Agreement was [*10]signed - - provisions imported into the evaluation of prenuptial agreements by DRL 236(B)(3) - - the entire Agreement is forfeit.
Plaintiff principally relies upon the 2013 Court of Appeals decision of Galetta v. Galetta, 21 NY3d 186 (2013). In Galetta, the Court of Appeals held the prenuptial agreement at issue there invalid because the acknowledgment form used for the signature of one of the parties ran afoul of the Real Property Law provisions that obtained at the time. However, as discussed more fully below, Galetta is, upon analysis, at once distinguishable from the facts herein, and supportive of the conclusion that the acknowledgment form used in the Agreement in the instant case, albeit not in exact conformity with a the letter of the Real Property Law, nonetheless passes statutory muster. Both Galetta and the cases decided before and after it stand for the proposition that substantial rather than the slavish compliance with the strict terms of the statutory form of acknowledgment is all that is required under the DRL; upon analysis, the acknowledgment form used in the instant case is well within those statutory boundaries. Galetta itself so suggests.
DRL § 236(B)(3) provides in pertinent part as follows:
"3. Agreement of the parties. An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded." (Emphasis added).
At the time that the prenuptial agreement at issue in Galetta was signed, Section 291 of the Real Property Law (the "RPL"), which governed the "manner required to entitle a deed to be recorded" (DRL § 236B(3)), prescribed that any deed be "duly acknowledged by the person executing the same, or proved as required by this chapter" in order to be recorded (Galetta, 21 NY3d 191, quoting then § 291 of the Real Property Law). The Galetta Court interpreted two other provisions of the RPL - - § 292 and § 303 - - as setting forth the requisite form of acknowledgment that had to be used for the recording of the deed so that it would be "duly acknowledged" - - a form of acknowledgment that would satisfy the two essential objectives of solemnity and identity as articulated by the Court: that the party signing the document openly acknowledge to the notary public or other officer that he or she signed the document (RPL § 292), and that the notary either "knows or has satisfactory evidence that the person making it is the person described in and who executed such instrument." (RPL § 303) (Galetta, 21 NY3d at 192).
As the Court stated:
The acknowledgment requirement fulfills two important purposes. First, "acknowledgment serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person" (Matisoff, 90 NY2d at 133). Second, it necessarily imposes on the signer a measure of deliberation in the act of executing the document. Just as in the case of a deed where the law puts in the path of the grantor "formalities to check haste and foster reflection and care . . . [h]ere, too, the formality of an acknowledgment underscores the weighty personal choices to relinquish significant property or inheritance rights, or to resolve important issues concerning child custody, education and care" (id. at 136 [internal quotation marks and citation omitted]"). Galetta, 21 NY3d at 191-192. (Emphasis added).
That appears straightforward enough. The Court in Galetta however, confronted an unusual situation. It was constrained to examine two different forms of acknowledgment, each signed at different times and places. The Court held that the wife's acknowledgment was in compliance with the statute's requirements, while the husband's fell short.
The form of acknowledgment used by the wife's notary - - which, parenthetically, bears a strong resemblance to the acknowledgment form used in the Agreement at issue in the instant case - - was deemed acceptable by the Court since it satisfied the two essential criteria for an acknowledgment that the Court had previously articulated. As the Court stated,
At the time the parties here signed the prenuptial agreement in 1997, proper certificates of acknowledgment typically contained boilerplate language substantially the same as that included in the certificate accompanying the wife's signature: "before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same." The "to me known and known to me to be the person described in the document" phrase satisfied the requirement that the official indicate that he or she knew or had ascertained that the signer was the person described in the document. The clause beginning with the words "and duly acknowledged" established that the signer had made the requisite oral declaration.
Id. at 193. (Emphasis added).
Conversely, the acknowledgment form used by the Galetta husband's notary was found wanting because it "inexplicably omitted" the phrase "to me known and known to me." The Court reasoned that "[a]bsent the omitted language, the certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement." (Id at 193). In light of this deficiency the Court of Appeals held the certificate of acknowledgment of the husband's signature defective and therefore the prenuptial agreement invalid since it did not comport with the terms of DRL § 236(B)(3).
As the Galetta Court noted, shortly after the parties in that case signed their prenuptial agreement in 1997, the Real Property Law was amended; a new section, § 309-a was added to the RPL which provides that a "certificate of acknowledgment" must read as follows "or conform substantially" (Galetta, 21 NY3d at 199) with the form as set forth in the statute. As RPL § 309-a (1) provides
"1. The certificate of an acknowledgment, within this state, of a conveyance or other instrument in respect to real property situate in this state, by a person, must conform substantially with the following form, the blanks being properly filled:
State of New York)
) ss:
County of . . . . . . . . . . )
On the ........... day of ................ in the year ....... before me, the undersigned, [*11]personally appeared ........., personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
(RPL § 309-a 01) (Signature and office of individual taking acknowledgment)." (Emphasis added).
In the instant case, even a cursory examination of the acknowledgment form used for both signatures in the Agreement at issue - - an Agreement signed in 2002 - - reveals that it does not precisely track the language of the statutorily prescribed form. As the acknowledgment form used herein (Pl. Exhs. 6 and 7) provides,
"STATE OF NEW YORK)
) ss:
COUNTY OF)
On theday ofbefore me personally cameto me known and known to me to be the individual described in, and who executed the foregoing instrument, and duly acknowledged to me that he executed the same.
NOTARY PUBLIC"
As noted above, the acknowledgment used in the Agreement in the instant case is essentially the same form signed by the wife in Galetta and deemed acceptable by that Court. (See Galetta, 21 NY3d at 193). Nonetheless, Plaintiff Husband herein, purporting to rely on Galetta, argues that since the language of the acknowledgment used in this case is not an exact match to § 309-a(1)'s statutory language, the acknowledgment is deficient and the entire Agreement suspect. Plaintiff's argument, however, suffers from a fatal flaw: it ignores both the language of § 309-a itself and the case law - - including Galetta - - which hold that substantial rather than strict compliance with the statutory form of acknowledgment is all that is required.
First, as noted above, § 309-a itself indicates that substantial rather than exact [*12]compliance with the statutory form is sufficient: "[t]he certificate of acknowledgment. . . must conform substantially with the following form." (Emphasis added). The prescient pre--Galetta Second Department case of Weinstein v. Weinstein, 36 AD3d 797, 798 (2d Dept. 2007) upheld the spirit as well as the letter of §309-a by sustaining a prenuptial agreement which employed an acknowledgment in the form that obtained prior to the enactment of § 309-a because it satisfied the underlying "important purposes" of an acknowledgment as later articulated in Galetta. As the Court held,
A prenuptial agreement is valid only if it is "in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded" (Domestic Relations Law §236[B][3], see Matisoff v. Dobi, 90 NY2d 127, 132, 659 N.Y.S.2d 209, 681 N.E.2d 376). Here, the agreement was in writing, and was subscribed by both parties, but the certificate of acknowledgment attached to the agreement was not in the form currently specified by Real Property Law § 309-a. Rather, the certificate of acknowledgment was in the form prescribed by the statute prior to its amendment in 1997 (see L. 1997, ch. 179)
****
Contrary to the wife's argument, there is no requirement that a certificate of acknowledgment contain the precise language set forth in the Real Property Law. Rather, an acknowledgment is sufficient if it is in substantial compliance with the statute (see Real Property Law § 309-a[1]; Smith v. Boyd, 101 NY 472, 5 N.E. 319; Schum v. Burchard, 211 App. Div. 125, 206 N.Y.S. 574, affd. 240 NY 577, 148 N.E. 712). "There are two aspects to an acknowledgment: the oral declaration of the signer of the document and the written certificate, prepared by one of a number of public officials, generally a notary public" (Garguilio v. Garguilio, 122 AD2d 105, 106, 504 N.Y.S.2d 502; see Rogers v. Pell, 154 NY 518, 528-529, 49 N.E. 75 Detmer v. Detmer, 248 AD2d 582, 669 N.Y.S.2d 911). Since both aspects were satisfied here, the acknowledgment substantially complied with the requirements of the Real Property Law. The minor discrepancy in the date on which the document was executed was not, in itself, a basis to set aside the agreement. (Emphasis added).
When its turn came, the Galetta Court recognized, explicitly and implicitly, that the use of a form of acknowledgment whose language did not precisely track the statutory language would nonetheless be valid as long as it had within it the "core components" of identity and solemnity (Galetta, 21 NY3d at 194): explicitly by approving the Weinstein holding that the use of the typical pre-§ 309-a acknowledgment form was sufficient (Galetta, 21 NY3d at 194) and implicitly by its approval of such a form used in Galetta by the wife (Id, at 193). Cases following Galetta have also so held, sustaining certificates of acknowledgment in substantial but not precise compliance with the RPL § 309-a formulation. See, e.g., Matter of Koegel, 160 AD3d 11, 21-22 (2d Dept. 2018) ("A proper acknowledgment requires both an oral declaration by the signer of the document made before an authorizing officer and a written certificate of acknowledgment, attached to the agreement, endorsed by an authorized public officer attesting to [*13]the oral declaration. . . However, there is no requirement that a certificate of acknowledgment contain the precise language of the Real Property Law. Rather, an acknowledgment is sufficient if it is in substantial compliance with the statute." (Citations omitted); Defilippi v. Defilippi, 48 Misc 3d 937 (Sup. Ct., West. Co. 2015); B.W. v. R.F., 53 Misc 3d 366 (Sup. Ct., West. Co. 2016).
In the instant case, the certificate of acknowledgment used by the notary Ms. Klinkowitz clearly comports with the essential elements and underlying purposes of § 309-b as recognized in Galetta. Such acknowledgment satisfied the identity component through the notary's statement that the person who signed the document "before me personally came" and was "to me known and known to me to be" the individual who signed it; and it satisfied the solemnity component by stating that such person "duly acknowledged to me that he executed the same." (See Pl. Exhs 6 and 7).
Moreover, the absence in the acknowledgment form used herein of the disjunctive phrase contained in the statutory form, "or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument" (RPL § 309-a (1) emphasis added) - - an alleged deficiency relied upon by Plaintiff - - is of no moment. For, the statute's use of the disjunctive clearly indicates that satisfaction of the identity element of the acknowledgment that would mandate the notary demanding "satisfactory evidence" of identity of the signer would only come into play if the signer was not "known" to the notary. In the instant case, Plaintiff failed to adduce any evidence that he was not "known" to the notary, the bank officer Ms. Klinkowitz. Indeed, the testimony of the witness to Plaintiff's signature is to the contrary. Ms. Hammel, testified at the Hearing that not only would she and Ms. Klinkowitz never witness or notarize a person's signature without that person being present, but that in addition, she recognized Plaintiff as a frequent customer of the bank at the time, and that the notary, like her, had been a branch bank employee of longstanding. In addition, Defendant testified that both she and Plaintiff identified themselves to Ms. Hammel and Ms. Klinkowitz before signing, and Plaintiff confirmed in his testimony that he frequented the HSBC Bronxville branch often and recognized Ms. Hammel as a bank employee (see discussion supra at 5-10).
The Court is also constrained to note that here, unlike in Galetta, a full evidentiary hearing was held, which lay to rest the question of Plaintiff's identity at the time he signed the Agreement; his signature was verified by expert analysis as well as other testimony to be on the Agreement. (See discussion supra at 3-11). In the face of the substantial statutory compliance of the acknowledgment form used herein - - essentially the same form approved in Galetta - - and the evidence adduced in and the conclusions reached after a full evidentiary hearing, to scuttle a comprehensive prenuptial agreement because the acknowledgment form did not slavishly adher to the letter of the statutory language would be the height of exaulting form over substance. This the Court is not prepared to do.
Pendente Lite Counsel Fees
Finally, Plaintiff is seeking pendente lite attorneys fees in the amount of $55,000. As Plaintiff acknowledges, he previously obtained from Defendant, through the good offices of Court Attorney Referee Laurie Sullivan, $17,000 in pendente lite fees, which he contends have been expended, and then some - - a claim that the Court credits in view of the papers that have been submitted on these motions and the conferences and Hearing held since that time. [*14]Defendant opposes Plaintiff's application.
DRL § 237 provides that the Court may award counsel fees to the less monied spouse. As DRL § 237 (a) states, in pertinent part
"In any [matrimonial] action or proceeding . . . the court . . . may direct the person or persons maintaining the action, to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse." (Emphasis added).
As the parties' respective Net Worth Statements and their joint 2016 tax return reflect, Plaintiff has established that he is clearly the less monied spouse. Defendant earns a salary in excess of $100,000 and enjoys significant income from other sources, while Plaintiff is unemployed (See Net Worth Sts., Exh A and B to Plaintiff's Moving Affid.). Plaintiff is therefore presumptively entitled to an interim attorney fee award under DRL § 237.
However, Plaintiff has the capacity to resume gainful employment, which he enjoyed in the past as he testified during the Hearing. Although, as Defendant rightly contends, Plaintiff should have some "skin in the gane," (Sykes v. Sykes, 41 Misc 3d 1061 (Sup. Ct., NY Co. 2013), he has nonetheless demonstrated a need for a modicum of attorneys' fee assistance in order to properly level the playing field so that he eventual outcome of the case is not determined by "the weight of the wealthier litigant's wallet." O'Shea v. O'Shea, 93 NY2d 187, 190 (1999); see also DeCabrera v. DeCabrera-Rosete, 70 NY2d 879 (1987); Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008). In determining the amount of financial assistance to furnish Plaintiff, the Court must also take into account the implications of the instant decision upholding the Prenuptial Agreement - - a decision which will, perforce, significantly reduce the time and expense of litigation as far as the issues of maintenance and equitable distribution are concerned.
Be that as it may, the decision of whether and how much to award a party for counsel fees is within the sound discretion of the court. See Morrissey v. Morrissey, 259 AD2d 472, 473 (2d Dept. 1999) ("The award of reasonable counsel fees is a matter within the sound discretion of the trial court"); Scheinkman, NY Law of Dom. Rel. ¶§ 19.1. In light of the surrounding facts and circumstances of the case, the Court concludes in its discretion that an award to Plaintiff of interim counsel fees in the amount of $15,000 subject to reallocation at trial, would be appropriate here. Defendant shall pay that amount directly to Plaintiff's counsel in two installments; a payment of $7,500 by September 30, 2018 and a second payment of $7,500 by October 15, 2018.
Conclusion
Accordingly, for the reasons stated herein, Plaintiff's motions are denied in all respects except for the award to Plaintiff of pendente lite counsel fees, which is granted in part as set forth above. The Court has considered any contentions of the parties not specifically addressed herein and finds them to be without merit or not worthy of further comment.
The foregoing constitutes the Decision and Order of this Court.
Dated: September 12, 2018
White Plains, New York
Hon. John P. Colangelo
Supreme Court Justice
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