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
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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