        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

886
CA 13-00250
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


FELICIA DAWES, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

THOMAS E. DAWES, JR., DEFENDANT-APPELLANT.


HOGAN & WILLIG, PLLC, AMHERST (KEVIN S. MAHONEY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

COTTER & COTTER, P.C., WILLIAMSVILLE (DAVID B. COTTER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Catherine Nugent Panepinto, J.), entered October 29, 2012. The order
vacated the Separation and Property Settlement Agreement entered into
by the parties.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: The parties entered into a separation agreement
(hereafter, agreement) on September 18, 2007 and, on December 19,
2011, plaintiff wife moved by order to show cause to rescind it.
Following a hearing, Supreme Court vacated the agreement on the
grounds that plaintiff signed it under duress and it was the product
of defendant husband’s overreaching. We affirm.

     “ ‘Judicial review [of separation agreements] 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’ ” (Skotnicki v
Skotnicki, 237 AD2d 974, 974, quoting Christian v Christian, 42 NY2d
63, 71-72). “[S]eparation agreements will be scrutinized ‘to see to
it that they are arrived at fairly and equitably, in a manner so as to
be free from the taint of fraud and duress, and to set aside or refuse
to enforce those born of and subsisting in inequity’ ” (Tchorzewski v
Tchorzewksi, 278 AD2d 869, 870; see Skotnicki, 237 AD2d at 974-975;
see also Christian, 42 NY2d at 72). “A separation agreement ‘may be
vacated if it is manifestly unfair to one party because of the other’s
overreaching or where its terms are unconscionable’ ” (Tchorzewski,
278 AD2d at 870).

     We agree with defendant that plaintiff did not sign the agreement
under duress. Plaintiff’s allegations that defendant threatened to
                                 -2-                           886
                                                         CA 13-00250

evict her from the marital residence if she did not sign the agreement
and that he threw the agreement at her are not substantiated by proof
sufficient to justify setting it aside (see Christian, 42 NY2d at 71-
73; see also Weimer v Weimer, 281 AD2d 989, 989). Further, even
accepting plaintiff’s allegation that defendant persistently urged her
to sign the agreement, such conduct does not constitute duress,
particularly inasmuch as plaintiff signed the agreement after
defendant revised it in accordance with her suggested changes.

     We conclude, however, that the court properly determined that the
agreement was “ ‘one such as no [person] in his [or her] senses and
not under delusion would make on the one hand, and as no honest and
fair [person] would accept on the other’ ” (Colello v Colello, 9 AD3d
855, 859, quoting Christian, 42 NY2d at 71; see Skotnicki, 237 AD2d at
975). As defendant correctly concedes, the agreement gives him almost
all of the marital property, including his pension and retirement
assets, and we note that the value of the pension and retirement
assets is not apparent from the record because defendant failed to
include a copy of his net worth statement. The agreement further
provides that plaintiff may not seek maintenance and, most troubling
under the circumstances of this case, that plaintiff waived her right
to seek child support.

     Contrary to defendant’s contention, we conclude that plaintiff
did not ratify the agreement by complying with its provisions and
failing to object to it for more than four years (see Pippis v Pippis,
69 AD3d 824, 825; Arrow v Arrow, 133 AD2d 960, 961). During those
four years, plaintiff did not receive any of the limited benefits
accorded to her under the agreement. The fact that defendant allowed
plaintiff to live in the marital residence during that time was no
benefit to plaintiff inasmuch as the marital residence constituted
marital property and she had an equal right to live there.




Entered:   October 4, 2013                      Frances E. Cafarell
                                                Clerk of the Court
