A. D. v C.R.

[*1] A. D. v C.R. 2018 NY Slip Op 50439(U) Decided on April 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 4, 2018
Supreme Court, Westchester County

A.D., Plaintiff,

against

C.R., Defendant.



58189/2017



Law Offices of Elizabeth A. Douglas, PLLC

Attorneys for Plaintiff

245 Main Street, Ste. 610

White Plains, NY 10601

Johnson & Cohen, LLP

Attorneys for Defendant

701 Westchester Avenue, Ste. 208W

White Plains, NY 10604
John P. Colangelo, J.

The following papers were considered on Plaintiff's Motion and Defendant's Cross-Motion:

Plaintiff's Notice of Motion, Affirmation of Elizabeth A. Douglas, Esq., and Affidavit of A. D. in Support of Motion with Exhibits: 1 - 240

Defendant's Notice of Cross-Motion, Affidavit of C. R., Affirmation of Maureen A. Dunn, Esq., in Opposition to Motion and in Support of Cross-Motion, with Exhibits, and [*2]Memorandum of Law: 241 - 431

Affidavit of Plaintiff A. D. and Affirmation of Elizabeth Douglas, Esq. in Opposition to Cross-Motion and in further Support of Motion, with Exhibits: 432 - 512

Reply Affidavit of C. R. and Reply Affirmation of Maureen A. Dunn, with Exhibits: 513 - 527

Transcript of Oral Argument on Motion and Cross-Motion, dated February 22, 2018: 528 - 575

In this matrimonial action, plaintiff A. D. ("Plaintiff" or "Wife") has moved by notice of motion "for an Order setting aside the parties' Stipulation of Settlement dated August 22, 2013 based on fraud" and to then grant "the Plaintiff pendente lite relief of maintenance and counsel fees." Defendant C. R. ("Defendant" or "Husband") opposes Plaintiff's motion, and has interposed a cross-motion to declare "the parties' Stipulation of Settlement dated August 22, 2013 to be valid and enforceable," which Defendant opposes. Each party also seeks an award of attorneys' fees. After the motion papers were fully submitted, counsel orally argued the parties' respective positions on February 22, 2018.

Factual Background

The parties were married on February 14, 1997 in Ossining, New York and have two children, ages 18 and 16. This action for divorce was commenced in May 2017. The fulcrum of the instant motion and cross motion is a post-nuptial Stipulation of Settlement entered into on August 22, 2013 (the "Stipulation" or the "Agreement"). The parties separated at or around the same time, and have remained separated. (Pl. Moving Affid. ¶¶ 3-4). At the time that the Agreement was signed and acknowledged by the parties, an action for divorce, commenced by Defendant in December 2011, was pending; that prior action was voluntarily discontinued in October 2013, several weeks after the Agreement was executed. (Id.).

Both parties concur that the Agreement was properly signed and acknowledged, and that each party was represented by competent counsel during the negotiation and execution of it. The eighteen page Agreement is comprehensive and was intended to be so. As the Agreement states, "the parties intend to continue to live separate and apart permanently, and wish to agree on an equitable division of their marital property to settle their respective property rights and to agree on terms for maintenance, and all other respective rights, remedies, privileges and obligations to each other and their Children arising out of the marriage relations or otherwise." (Stip., Pl. Exh. A at p. 1).

The Agreement called for regular and periodic support payments - - both maintenance and child support - - to be made from Defendant to Plaintiff, and set forth a detailed access schedule with respect to the Children. Plaintiff does not contend that Defendant failed to abide by these aspects of the Agreement. Moreover, consistent with the fact that both parties were represented by counsel throughout the process of negotiating and drafting the Agreement, the Agreement expressly provides that each party made his or her own independent inquiry into the facts underlying the financial aspects of the Agreement, that it was not the "result of any fraud, duress or undue influence," and each party "acknowledges that this Agreement has been achieved after [*3]full disclosure, competent legal representation and honest negotiations." As Article 14 of the Agreement entitled "Full Disclosure" provides:

ARTICLE 14

FULL DISCLOSURE

"Each party has made independent inquiry into the complete financial circumstances of other and is fully informed of the income, assets, property and financial prospects of the other. Each has had a full opportunity and has consulted at length with his or her attorney regarding all of the circumstances hereof and acknowledges that this Agreement has not been the result of any fraud, duress or undue influence exercised by either party upon the other by any other person or persons upon the other. Both parties acknowledge that this Agreement has been achieved after full disclosure, competent legal representation and honest negotiations. Prior to the execution hereof, the parties have furnished to the other a detailed statement and analysis of their net worth." (Stip., Pl. Exh. A at p. 6).

Article 22 of the Agreement further states that the "Agreement contains the entire understanding of the parties who hereby acknowledge that there have been, and are, no representations, warranties, covenants or undertaking [sic] other than those expressly set forth herein." (Id. at 18).

In the face of this history and these provisions, Plaintiff nonetheless now seeks to scuttle the entire Agreement not because Defendant failed to abide by its terms, but on the ground of alleged fraud with respect to two buildings mentioned in the Agreement, the 27 Cullen Avenue Property located in New Windsor, New York and the 353 Liberty Street Property, located in Newburgh, New York, one of which was in ashes at the time the Agreement was signed, while the other had already been transferred out of marital hands. As discussed more fully below, Plaintiff's effort proves unavailing for the simple and fundamental reason that she cannot establish that her decision to enter into the Agreement was induced by fraud. Among other things, the quintessential elements of materiality and reasonable reliance are plainly lacking.

The 27 Cullen Avenue Property

With respect to the 27 Cullen Avenue Property (the "Property"), the Agreement provides as follows:

"The property located at 27 Cullen Avenue, New Windsor, New York was transferred by the Husband during the pendency of this divorce action and he represents that the property has been foreclosed. The Wife is relying on the Husband's representation as to the status of this property." (Stip. p. 7).

In her motion papers, Plaintiff appears to contend that the "Husband's representation" was false because the Property had been transferred or foreclosed upon before, not during, the pendency of the prior divorce action. However, during oral argument, Plaintiff essentially abandoned her claim with respect to the alleged representations concerning the 27 Cullen Avenue Property, and with good reason: whether the Property was transferred and/or foreclosed upon before or after the date the first matrimonial action was commenced is of no moment; it was unavailable for distribution to either party at the time the Agreement was signed, as Plaintiff acknowledged in her motion papers and at oral argument. (See Transcript of February 22, 2018 Oral Argument (the "Tr.") at pp. 13-14; Pl. Affid. In Support, ¶ 23). Accordingly, representations, even if made, with respect to the history of this past asset can scarcely be [*4]deemed material to the Agreement and therefore the basis of any cognizable claim of fraud.

The 353 Liberty Street Property

Plaintiff's principal claim of fraud (Tr. at 13-14) centers around alleged representations or omissions by Defendant concerning the building and property located at 353 Liberty Street in Newburgh, New York (the "Liberty Street Property" or "Liberty Street") - - a building which, at the time the Stipulation was signed, had been destroyed by fire, as both parties acknowledged:

"The parties acknowledge that the property located at 353 Liberty Street, Newburgh, New York was destroyed by a fire. They further acknowledge that they have an outstanding insurance claim against the insurance company that insured the building and that they will cooperate with each other and the insurance company to insure they receive the proceeds from the insurance company. If they are required to rebuild the property they will do so thereafter and the property and divide the proceeds equally. If they are not required to rebuild, then they will pay off the mortgage if required split the proceeds and thereafter sell the vacant land and share equally in these proceeds." (Stip. Art. 5 at p. 6).

The fraud asserted by Plaintiff is in the nature of alleged misrepresentations and concealment about potential insurance proceeds with respect to the fire that destroyed the building. The Agreement provides for a division of any net proceeds received from the insurance company once any outstanding mortgage is satisfied. Plaintiff asserts that Defendant failed to advise her that two years before the Agreement was signed, the insurance company had sent him a letter dated August 23, 2011 disclaiming coverage, and therefore there might be no proceeds to divide. (The "2011 Letter" or the "Letter", Pl. Exh. E). It should be noted that Defendant states that he did not recall when he received the 2011 Letter (Deft. Moving Affid., ¶ 13), and that the insurance company ultimately did pay the claim, with all of such proceeds used to pay off the existing mortgage (id. ¶ 11) as the Agreement contemplated might happen; the Agreement states that the Property is subject to a mortgage, and that the parties recognize that any insurance proceeds forthcoming would first go to the mortgage bank. (See Stip. Art. 5). The parties further acknowledge in the Agreement that they have each conducted a thorough investigation of the assets disposed of pursuant to it. (Stip., Art. 14). In addition, the documents annexed to the motion papers clearly show, as Plaintiff grudgingly recognized, that Plaintiff learned of the 2011 disclaimer Letter by no later than early July 2015, yet continued to accept the benefits of the Agreement - - including Defendant's support payments - - without complaint until bringing the instant motion more than two years later. (Deft. Exh. H; Tr. at 27-28).

As discussed more fully below, in light of the language of the Agreement itself, coupled with the strong public policy reflected in the DRL in favor of parties ordering their own affairs, Plaintiff's fraud claim fails to pass muster. Plaintiff cannot hope to establish the basic elements of materiality or reliance, and essentially ratified the Agreement by accepting its benefits for years before seeking its vacatur. In short, as the case law shows, claims of concealment sufficient to overturn a comprehensive postnuptial agreement, negotiated and drafted by concededly competent counsel on both sides, must be made of sterner stuff than those asserted here.

Discussion

Section 236, Part B(3) of the Domestic Relations Law specifically provides for enforcement of marital agreements made both before and during the marriage:

"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 against the 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 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 or postnuptial "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 [*5]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. Chambers 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 or postnuptial agreement. For example, as the Second Department held in Matter of Borabash, 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. Panossian, 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 enforceability unless such lack of 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 or postnuptial agreement may have been afoot.

Plaintiff has clearly failed to sustain her burden here. Put simply, in the instant case, factors that would justify the extraordinary step of invalidating a postnuptial agreement are manifestly absent.

As a threshold matter, neither party claims that the Agreement was not properly signed and acknowledged, as DRL 236 Part B(3) commands. In addition, a review of Plaintiff's motion and her contentions during oral argument of it reveals that this is not a typical case in which a party seeks to vacate a prenuptial or postnuptial agreement. Plaintiff is not claiming that any of the terms of the Agreement were unconscionable, or were the product of overreaching by Defendant; nor is she asserting that she did not understand any central terms of the Agreement or that she was not adequately represented by counsel. In fact, as Plaintiff's current counsel admitted at oral argument, her attorney at the time took a laboring oar in drafting the Agreement. (Tr. at 30-32). Moreover, the Agreement - - clearly signed and acknowledged by both parties - - expressly states that each party had an adequate opportunity to consult with counsel and, of equal importance, fully examine the financial circumstances of each other including, specifically, the parties' assets. (See Stip., Articles 14, 22 and 23).

More significantly, Plaintiff is not maintaining that the Agreement is so permeated by fraud that it should have been discarded in its entirety on that basis. Instead, Plaintiff's focus is on one aspect of the Agreement, regarding one of several properties disposed of in it: she maintains that Defendant concealed or misrepresented facts regarding a potential insurance recovery on a property, in ashes and encumbered by a mortgage, for which, as the language of the Agreement reflects, no such recovery is guaranteed or quantified in any way.

Perhaps for this reason, it is unclear whether Plaintiff is asserting a fraud in the inducement claim at all predicated on such alleged misrepresentation or concealment. At one point during oral argument on the motion, Plaintiff's counsel stated that Plaintiff would not have [*6]entered into the Agreement had she known about the insurance company's 2011 declination Letter (Tr. at 11-12), but later changed course and indicated that she would have nonetheless entered into the Agreement, but would have "asked for more." (Tr. at 35-36).

Be that as it may, it is nonetheless clear that essential elements of a fraud claim sufficient to overturn a freely negotiated postnuptial agreement are plainly lacking here. The essential elements of a fraud in the inducement claim are clear and of longstanding. As the Second Department held in affirming the dismissal of a fraud in the inducement cause of action, "[t]he elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages." Orchid Construction Corp. v. Gonzalez, 89 AD3d 705 (2d Dept. 2011), quoting, Introna v. Huntington Learning Centers Inc. 78 AD3d 896, 898; see also Euryclein Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559 (2009).

In the instant case, the alleged misrepresentations or omissions complained of are not sufficiently material to bring down an entire 18 page edifice which provided in detail for the disposition of the parties' assets, support and child custody, and which was negotiated, drafted and reviewed with the assistance of competent counsel. This is particularly true since, as the very terms of the Agreement state, Plaintiff had the opportunity to, and stated that she had in fact "made independent inquiry into the complete financial circumstances of [Defendant] and is fully informed of the income, assets, property and financial prospects of [Defendant]." (Art. 14). Indeed, the fact that Plaintiff sat idly by, basking in the benefits of the Agreement's terms for well over two years after discovering the insurance company disclaimer Letter before acting on it, gives the lie to her apparent contention that such allegedly concealed facts were material such that she would not have signed had she known of them. By the same token, Plaintiff cannot seriously maintain that because of such omissions, she was misled and therefore reasonably relied upon the statements set forth in the one paragraph concerning the destroyed Liberty Street Property in deciding to enter into the Agreement; her own representations as contained in the Agreement as well as her subsequent actions speak to the contrary.

In short, as the pertinent case laws demonstrates, a party cannot nitpick its way out of a freely negotiated, comprehensive postnuptial agreement, entered into and acknowledged with the assistance of competent counsel, by training his or her sights on the peccadillos of one paragraph thereof. In light of the strong policy as reflected in the DRL in favor of parties ordering their own affairs, something more is needed - - not present here - - to establish misrepresentation or concealment sufficient to render such an agreement a nullity. The case law so holds.

Conclusions

The case law demonstrates that even if an alleged misrepresentation concerning the value of a central asset is involved, the policy in favor of the parties ordering their own affairs is so compelling that as long as the object of the misrepresentation was disclosed, and the parties are represented by counsel who made or could have made an appropriate inquiry, the agreement will be upheld. This is particularly true where - - as in the instant case - - the agreement itself stipulates that the parties each make no representations regarding any such asset, and have performed their own financial investigation.

For example, in the First Department case of DiSalvo v. Graff, 227 AD2d 298 (1st Dept. 1996), the Court rejected plaintiff's attempt to set aside a divorce action settlement agreement on [*7]the ground of fraud relating to each party's stock holdings when plaintiff had been represented by competent counsel and acknowledged that she had made her own full and independent examination of defendant's finances. As the Court held in granting summary judgment to defendant:

"The IAS Court correctly held that the challenged agreement, wherein the parties agreed to relinquish their respective claims to, among other things, the other's stock holdings is prima facie valid and that plaintiff failed to come forward with any evidence of fraud or overreaching to defeat defendant's motion for summary judgment. Plaintiff, a business executive who was in a hurry for a divorce and over three years preceding the agreement had earned considerably more than defendant, approximately $80,000 a year at the time the agreement was signed in 1991, was represented by competent, independent counsel, who drafted the agreement, and specifically acknowledged that she had made her own independent investigation of defendant's business affairs and was waiving further disclosure."

Similarly, in Kojovic v. Goldman, 35 AD3d 65 (1st Dept. 2006), plaintiff wife sought to set aside an agreement settling the divorce action on the basis of fraud and overreaching. Plaintiff alleged that defendant had failed to disclose the possibility that a privately held company in which he held a minority position might be sold in the near future. The Court rejected plaintiff's attempt to overturn the fully negotiated agreement on fraudulent concealment grounds when the agreement specifically stated that "[e]ach party has made inquiry into the financial circumstances of the other and is sufficiently informed of the income, assets and financial condition of the other." (Id at 67). As the First Department stated, relying upon its decision in DiSalvo,

"In affirming the dismissal of the wife's action in DiSalvo, this court emphasized that the wife specifically acknowledged that she had made her own independent investigation of [the husband's] business affairs and was waiving further disclosure." That is precisely the case here." (Id. at 68).

Expressing its " disdain for post divorce claims of concealment" (id. at 70), the Court granted defendant's motion to dismiss the complaint. See also McFarland v. McFarland, 70 NY2d 916, 917-918 (1987). (Affirming the dismissal of plaintiff's action for rescission of a separation agreement, the Court held that "[e]ven assuming that the allegations of fraud and duress in plaintiff's complaint are technically sufficient to support a claim of rescission, those allegations do not rise to the level of gross inequity that would implicate New York's public policy . . . We note that plaintiff was represented by independent counsel of her own choosing at the time she signed the separation agreement and that the agreement, while favorable to her former husband, is neither facially irregular nor unconscionable as that term has been defined in the case law."); Martin v. Martin, 74 AD2d 419 (4th Dept. 1980).

The holdings in DiSalvo and Kojovic are dispositive of the instant case. As in those cases, Plaintiff herein knew of the asset that was the subject of the alleged misrepresentation - - the Liberty Street Property and its potential insurance proceeds; Plaintiff was represented by competent counsel; and the Agreement expressly states that "[e]ach party has made independent inquiry into the complete financial circumstances of the other and is fully informed of the income, assets, property and financial prospects of the other." (Stip. Art. 14).

What is more, here, unlike DiSalvo or Kojovic, the Agreement also contains an acknowledgment by the parties "that there have been, and are, no representations, warranties, covenants or undertaking other than those expressly set forth herein." (Id., Art. 22) Significantly, in the instant case, the sole paragraph of the Agreement pertaining to the Liberty Street Property contains no such express "representation, warranty, covenant or undertaking" by Defendant, unlike some other paragraphs of the Agreement where such express representations were made and identified as such. (See discussion supra at p.4, re. the Cullen Avenue Property provision). And, in contrast to the situation present in DiSalvo and Kojovic, where the assets to which the alleged misrepresentation were directed presumably went to the heart of the agreement at issue - - extensive stock holdings in DiSalvo and an interest in a potentially lucrative business in Kojovic - - in the instant case, only one, and that contingent at best, of several assets addressed in a comprehensive settlement undertaking is implicated in the alleged fraud. The First Department in DiSalvo and Kojovic nonetheless rejected the respective plaintiff's fraud claims in light of their representation by counsel and their acknowledgment that they themselves inquired into and were informed of the financial aspects of the opposing party - - "precisely the case here." (Kojovic, 35 AD3d at 68). For the same reasons, the same result must obtain herein.

It should also be noted that Plaintiff's attempt to overturn the Agreement is meritless for another salient reason: by accepting the benefits of the Agreement - - including most notably, the receipt of over two years of support payments before moving to vacate it - - Plaintiff effectively ratified the Agreement and is therefore estopped from challenging its bona fides. This ratification/estoppel principle holds true even when fraud is asserted if the allegedly aggrieved party had the opportunity to conduct his or her own investigation of the underlying facts and thereafter accepted the benefits of the agreement. See, e.g., Chalos v. Chalos, 128 AD2d 498, 499 (2d Dept. 1987) ("With respect to plaintiff's allegations of fraud, we find that plaintiff's ratification of the agreement bars the action . . . In any event, the plaintiff knew about the defendant's holding in certain property and the mere fact that the defendant did not apprise the plaintiff of their worth is not sufficient to indicate that a fraud was perpetrated upon her."); see also Stoerchle v. Stoerchle 101 AD2d 831, 832 (2d Dept. 1984); Markowitz v. Markowitz, 29 AD3d 460 (1st Dept. 2006); Beutel v. Beutel, 55 NY2d 957 (1982).

As discussed above, such a situation obtains in the instant case, particularly in view of the fact that Plaintiff learned of the insurance company's disclaimer Letter in 2015, yet accepted the support payments pursuant to the Agreement for over two years thereafter before crying fraud. (See discussion supra at 6). In addition, Plaintiff's acceptance of the benefits of the Agreement even after she learned of the insurance company Letter disclaiming coverage further undermines her claim that Defendant's alleged misrepresentation about the Liberty Street Property were either material or reasonably relied upon by Plaintiff in deciding whether or not to enter into the Agreement in the first place.

Accordingly, Plaintiff's motion to set aside the Agreement is denied in all respects, and Defendant's motion declaring the Agreement valid and enforceable is granted. In light of the Court's decision, the issue of pendente lite maintenance need not be addressed, and the Court declines to exercise its discretion to award counsel fees to either party.

The foregoing constitutes the Decision and Order of this Court.

Dated: April 4, 2018

White Plains, New York

Hon. John P. Colangelo

Supreme Court Justice