Bucceri v Stratton

[*1] Bucceri v Stratton 2018 NY Slip Op 51475(U) Decided on February 6, 2018 Supreme Court, Genesee County Colaiacovo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2018
Supreme Court, Genesee County

Dawn A. Bucceri (f/k/a Dawn A. Stratton), Plaintiff,

against

Daniel R. Stratton, Defendant.



65734



Attorney for Plaintiff: ANTHONY G. MARECKI, ESQ.

Attorney for Defendant: BRIAN R. WELSH, ESQ.
Emilio Colaiacovo, J.

Defendant has moved this Court for summary judgment pursuant to CPLR §3212 seeking to dismiss an action filed by Plaintiff seeking to invalidate and set-aside a Separation and Settlement Agreement (hereinafter "Agreement") entered into by the parties that was ultimately incorporated but not merged with a final Judgment of Divorce (hereinafter "Judgment"). Plaintiff opposes the motion, maintaining she possesses a meritorious claim and that questions of fact abound, sufficient to defeat the instant motion.

FACTS & PROCEDURAL HISTORY

The parties were previously married and, after a period of marital strife, negotiated an agreement which ended in their separation. The Plaintiff commenced an action thereafter and in 2011 a final Judgment was granted which incorporated but did not merge the parties agreement. As part of the Agreement, the Defendant was to pay maintenance payments in the sum of $200 a month until May 2011 and $800 thereafter. Further, Defendant was to pay the mortgage, taxes and costs associated with the former marital residence. He also assumed the marital debt and held the Plaintiff harmless.

On January 24, 2017, the Plaintiff commenced an action, six (6) years after the execution of the Agreement, seeking to rescind and vacate the Agreement. More specifically, Plaintiff seeks to undue the Agreement on several bases. First, Plaintiff alleges that the Agreement is invalid in that the draftsman, Benjamin Bonarigo, Esq., previously represented both parties and their interests in the sale of a business. Because Mr. Bonarigo represented both parties, the Plaintiff submits, he was unable to represent the Defendant in drafting the Agreement at the behest of Mr. Stratton. Second, Plaintiff asserts that the Agreement is void as it did not properly [*2]address the manner in which maintenance was calculated or that the parties were advised of the presumptive amount of maintenance. Third, the Plaintiff maintains that the Agreement is invalid in that it was not properly acknowledged. Plaintiff avers that she did not appear before the notary public who purportedly acknowledged her signature. Fourth, Plaintiff seeks to reform the Agreement so that it complied with the Domestic Relations Law.

Defendant answered the amended complaint and, after engaging in discovery, which included depositions, filed the present motion seeking Summary Judgment maintaining the Agreement is valid, fair and reasonable. The Court heard oral argument and considered the legal memorandums submitted by each side. The Court's decision is as follows.

ARGUMENT

Defendant submits that Plaintiff's action is specious and without merit. With respect to the issue of representation in the handling of the preparation of the agreement, Defendant maintains that Plaintiff never had an ownership interest in the corporation that was the subject of Mr. Bonarigo's representation. Further, while Plaintiff alleges she did not know the notary public whose name appears on the agreement nor recalls ever being in the presence of a notary when the agreement was acknowledged, Defendant suggests that to now raise these arguments, six years after the Agreement was executed, is self-serving. Further, Defendant cites the notary's testimony wherein she swore that she never notarized a document that was not in the presence of the signor. Regarding the substance of the Agreement itself, Defendant insists that Plaintiff suffers from "buyers remorse", that the Agreement was fairly negotiated and that the Plaintiff signed the agreement despite having every right to retain an attorney to review the Agreement before signing it. By signing the Agreement and accepting maintenance payments for more than six (6) years, she has ratified it and thus it is valid and enforceable.

Plaintiff, not surprisingly, adopts a dimmer approach as to the validity of the agreement. Plaintiff submits that the Agreement is the product of fraud and that boundless questions of fact remain that must defeat the motion. In particular, Plaintiff points to the inconsistencies in the notaries testimony, namely that she cannot recall the Plaintiff, that she keeps no record to assist her in recalling each acknowledgment, and that she could not identify anything specific about the Plaintiff. As to the Agreement itself, because the Agreement lacked the necessary recitals as required under the Domestic Relations Law in providing for the manner in which maintenance was calculated, it remains invalid. Further, Plaintiff insists that she was forced and under duress in executing the Agreement, which she insists is the product of over-reaching and manifestly unfair and one-sided. Lastly, the Agreement is tainted as it was drafted by an attorney who, she alleges, represented her in the sale of corporate certificates and thus conflicted. As such, Mr. Bonarigo could not represent the Defendant and thus the Agreement he produced is compromised.

DECISION

Summary judgment is a drastic remedy which is available in all actions, including matrimonial actions, and will only be granted if there are no disputed material facts to warrant a trial. CPLR §3212; see also Nicholas Di Menna & Sons, Inc. v. City of New York, 301 NY 118, 121 (1950).

When adjudicating a motion for summary judgment, it is not the role of the court at that moment to make factual determinations, but rather the court's function in deciding the motion is to ascertain the existence of material issues of fact based upon the examination of the proofs set forth by the parties through affidavits based upon personal knowledge. Behar v. Ordover, 92 [*3]AD2d 557 (2d Dep't 1983).

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, providing sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such a showing requires a denial of the motion regardless of the sufficiency of the opposition. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985); Alvarez v. Prospect Hospital, 68 NY2d 320, (1986); Ayotte v. Gervasio, 81 NY2d 1062 (1993). Further, when deciding a motion for summary judgment, the court must construe the pleadings in the light most favorable to the nonmoving party. Baker v. Briarcliff School Dist., 205 AD2d 652 (2d Dep't 1994).

The Plaintiff's challenges to the Agreement basically consist of alleging (1) that the Agreement is invalid because it is unfair and unreasonable, (2) that the Agreement is invalid because of the attorney draftpersons perceived conflict, (3) that the Agreement is invalid because it was not properly acknowledged and the product of duress; and (4) that the Agreement is invalid in that it does not comply with certain provisions of the Domestic Relations Law.

Turning to the cause of action wherein it is asserted that the Agreement is unfair and unreasonable, while many of the causes of action do overlap, Plaintiff maintains that the Agreement is invalid because it was the product of over-reaching, fraud and duress. The Court finds these arguments unavailing. For the most part, a separation agreement which is regular on its face will be recognized and enforced by the courts in much the same manner as an ordinary contract. However, because of the fiduciary relationship between husband and wife, separation agreements generally are closely scrutinized by the courts, and such agreements are more readily set aside in equity under circumstances that would be insufficient to nullify an ordinary contract. Christian v Christian, 42 NY2d 63 (1977); see also, McGahee v Kennedy, 48 NY2d 832 (1979). Although courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching, the general rule is that "[if] the execution of the agreement * * * be fair, no further inquiry will be made." Christian v Christian, supra, at p 73. While it is true that the Plaintiff did not retain independent counsel to review the agreement, she had plenty of opportunity to do so and chose not to.

In Levine v. Levine, the Court of Appeals was forced to address a similar question. In it, the trial court found the agreement valid notwithstanding the Plaintiff-Wife's statements to the contrary. The Appellate Division, Second Department, reversed, holding the Agreement to be invalid and the product of over-reaching. The Court of Appeals reversed the Second Department, re-affirming the trial court's decision to validate the terms of the Agreement. Levine v. Levine, 56 NY2d 42 (1982). In Levine, both parties used the same attorney to prepare their separation agreement. While the Court of Appeals noted the potential conflict of interests in using the same attorney, which is not the same case here but nevertheless quite similar in the practical analysis of what the parties underwent in the documents negotiation, like in Levine, the parties had an absolute right to counsel and there had been "full disclosure between the parties, not only of all relevant facts but also of their contextual significance, and there has been an absence of inequitable conduct or other infirmity which might vitiate the execution of the agreement". Id. at 49; citing Christian v Christian, 42 NY2d 63, 72, supra. In its holding, the Court of Appeals held,

Applying these principles to the case before us, we cannot conclude that it was error for the trial court, as a matter of law, to have found that the separation agreement in this case is fair, both on its face and when considered in light of the parties' circumstances at the [*4]time of execution. The husband undertook a variety of financial obligations, all of which were designed to maintain the wife and the two children in the style to which they were accustomed to living. Although the wife has contended throughout this action that the husband earns a far greater income than the record reflects, she has not come forward with an evidentiary showing to support this claim. We agree with the trial court that the wife's bare allegations to the effect that the husband has been "living high on the hog" provide no basis for overturning the parties' agreement.

Levine, supra at 49. While the facts adopted in its reasoning does not exactly mirror those facts here, this Court is left with the inescapable conclusion that the Plaintiff here wants a second bite at the apple and a chance to undo what she otherwise has accepted as valid for six years, which is evidenced by her receipt of the maintenance payments otherwise provided for in the agreement. This Court does not believe it should be in the business of re-evaluating and re-negotiating Agreements without a valid reason to do so. What has been presented by the Plaintiff as its basis to invalidate the agreement is unpersuasive and thus, the Defendant's motion with respect to this cause of action is hereby GRANTED.

As to the perceived conflict of interest, Plaintiff asserts that Mr. Bonarigo, the attorney draftsperson, had a conflict of interest as he had previously represented both parties in an unrelated corporate matter. Defendant disagrees, arguing that Plaintiff had no ownership interest in the corporate matter that necessitated Mr. Bonarigo's representation. Regardless, the Plaintiff's basis to set aside the Agreement on this basis is equally unconvincing.

A motion to disqualify based on a conflict of interest must be made promptly. Matter of Peters, 124 AD3d 1266 (4th Dept. 2015). In Matter of Peters, the objecting party demonstrated that she had a prior attorney-client relationship with petitioner's attorney concerning estate litigation. Despite this showing, the Appellate Division refused to disqualify counsel for the petitioner on the ground that objectant had waived any objection to the conflict. Objectant had been aware of the facts underlying the conflict for more than one year before the motion to disqualify was made. In light of the complexity of the litigation, the hardship to petitioner and the estate if the motion to disqualify was granted and the one year delay, the Appellate Division, Fourth Department, held that the motion was made as an "offensive tactic" and denied the relief sought. Id. at 1270. While the matter before the Court does not necessarily seek disqualification, the underlying reasoning can be applied to the facts here. If Plaintiff seeks to set aside an agreement based on the draftspersons alleged conflict, which she has known about for at least six (6) years since the ratification of the agreement, and most likely before its execution since she was aware of Bonarigo's representation during the corporate matter, the objecting party is found to waive its objection if it simply bides its time and fails to timely bring its objection. The Court finds this to be the case here and hereby GRANTS Defendant's part of the motion with respect to this cause of action. See also Hele Asset, LLC v. S.E.E. Realty Assoc., 106 AD3d 692 (2nd Dept. 2012); Gustafson v. Dippert, 68 AD3d 1678 (4th Dept. 2009); Lake v. Kaleida Health, 60 AD3d 1469 (4th Dept. 2009).

Regarding the acknowledgment of the Plaintiff's signature on the agreement, the Plaintiff has waived her objection to any technical ratification requirements, assuming arguendo that they exist, by failing to timely raise the issue. As the Court of Appeals noted in Beutel v. Beutel, once a party accepts the benefits provided for in an Agreement once ratified, there is a presumption of validity, allegations of duress and over-reaching notwithstanding. 55 NY2d 957 (1982). Similarly, any allegations that the agreement was entered into under duress is rebutted [*5]by what she otherwise acknowledged in the agreement. See Kazimierski v. Weiss, 252 AD2d 481 (2nd Dept. 1998); Carosella v. Carosella, 129 AD2d 547 (2nd Dept. 1987); Weinstein v Weinstein, 109 AD2d 881 (2nd Dept.1985). With respect to the notary acknowledgment, Plaintiff's have not demonstrated that the document was not properly acknowledged. It is highly unlikely for a notary public to remember each acknowledgment they undertake. However, the notary public did state under oath that she never would have acknowledged someone's signature had the person not actually appeared before them. Deposition of Margaret A. Felicano at p. 13-14. The Plaintiff's self-serving statements that her signature was not properly acknowledged is unconvincing. Nevertheless, the Plaintiff accepted all the benefits of the Agreement, including, but not limited to her Majauskas share of the Defendant's pension and more than eight (8) years of maintenance.Since she has accepted the benefits for nearly six (6) years and because the allegations regarding the notary acknowledgment are specious, the Plaintiff has waived her right to challenge the Agreement and that portion of the Defendant's motion is GRANTED.

Lastly, Defendant seeks summary judgment on the remaining cause of action which asserts that the Agreement is invalid in that it does not comply with Domestic Relations Law § 236. Essentially, in its complaint, Plaintiff alleges that the Agreement is defective because it fails to comply with the 2010 amendment which requires the Agreement to reflect that the parties were "advised of the statutory provisions regarding temporary maintenance and the presumptive nature of the guidelines." Verified Complaint, page 8, Paragraph 4. It should be noted that the Agreement was signed on November 15 and 16, 2010. While it is true that the law was to apply to matters commenced after October 12, 2010, the matter before the court was the execution of an Agreement and not the commencement of a new action. The Court does not believe the case relied on by Plaintiff, Anonymous v. Anonymous, 142 AD3d 187 (1st Dept. 2016), applies here. First, Anonymous applies to the application of the law regarding temporary maintenance calculations. That is not the case here. Second, the Agreement does reflect the financial circumstances of the parties in its calculations of child support. The Court finds that there was sufficient financial disclosure and, as such, is not inclined to set aside agreements, namely one executed more nearly eight (8) years ago, based on the arguments set forth by Plaintiff. Third, the new 2010 amendments to the Domestic Relations Law do not apply to this matter. As such, Defendants motion seeking Summary Judgment on this cause of action is GRANTED.

Accordingly, the Defendant's motion seeking Summary Judgment is GRANTED in its entirety. Defendant shall submit an Order in accordance with this decision on notice.

Dated: February 6, 2018

Hon. Emilio Colaiacovo, J.S.C.