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 Official Reports.
WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, RUTH C. BALKIN and CHERYL E. CHAMBERS, JJ.
Motion by the former attorney for the respondent to clarify a decision and order of this Court dated December 23, 2008, which determined an appeal from a judgment of the Supreme Court, Nassau County, entered March 29, 2007. Separate motion by the respondent pro se for leave to reargue the appeal. Application by the respondent pro se to dismiss the motion to clarify filed by his former attorney. Upon the papers filed in support of the motions and the application and the papers filed in opposition thereto, it is
ORDERED that the application is granted and the motion by the former attorney for the respondent to clarify the decision and order of this court dated December 23, 2008, is dismissed; and it is further,
ORDERED that the motion for leave to reargue is granted to the extent that the decision and order of this Court dated December 23, 2008 (Santini v Robinson, 57 AD3d 877), is recalled and vacated, and the following decision and order is substituted therefor, and the motion for leave to reargue is otherwise denied; and it is further, Peter B. Gierer, Hauppauge, N.Y. (Gayle A. Mandaro of counsel), for appellant. John P. DiMascio & Associates, LLP, Garden City, N.Y. (Jeffrey S. Chang of counsel), for respondent.
In an action to set aside the financial provisions of the parties' stipulation of settlement dated January 9, 1992, which was incorporated but not merged into a judgment of divorce, the defendant appeals from a judgment of the Supreme Court, Nassau County (Spinola, J.), entered March 29, 2007, which, inter alia, after a non-jury trial, set aside the provisions of the stipulation of settlement (1) awarding her 100% of the plaintiff's deferred compensation benefits, (2) directing the plaintiff to pay her interest at an annual rate of 9% on a $19,000 promissory note, (3) awarding her 100% of the parties' Individual Retirement Accounts, (4) awarding her exclusive possession of the marital home, (5) directing the plaintiff to pay 100% of the college expenses for the parties' three children, and (6) directing the plaintiff to pay her lifetime maintenance.
ORDERED that the judgment is modified, on the law, (1) by deleting [a] the second decretal paragraph thereof setting aside the entire stipulation of settlement dated January 9, 1992, [b] the third decretal paragraph thereof setting aside articles 3 and 4 of the stipulation and the promissory notes executed by the plaintiff in conjunction therewith, [c] the fourth decretal paragraph thereof directing the defendant to disgorge one half of the plaintiff's deferred compensation benefits, [d] the sixth decretal paragraph thereof awarding the plaintiff the sum of $6,402.21 from the plaintiff's IRA accounts, [e] the seventh decretal paragraph thereof awarding the plaintiff a sum equal to one half of the equity in the marital residence minus the sum of $24,000, [f] the eighth decretal paragraph thereof setting aside article 6, paragraph C of the stipulation relating to college expenses,[g] the tenth decretal paragraph thereof awarding the plaintiff the sum of $33,488, and [h] the eleventh decretal paragraph thereof valuing the marital portion of the plaintiff's pension at $106,957.98, (2) by deleting from the fifth decretal paragraph thereof the words "is awarded a judgment against the Defendant, Donna Robinson, in a sum equal to any unused sick time funds' paid to the Defendant" and substituting therefor the words "shall not be liable for any sum," and (3) by deleting from the ninth decretal paragraph thereof the words "paragraphs A, B, and C" and substituting therefor the words "paragraph B," and by deleting the word "forthwith" and substituting the words "as of June 7, 2006"; as so modified, the judgment is affirmed, without costs or disbursements.
The parties to the underlying matrimonial action were married on February 19, 1973, and have three children. The principal assets acquired by the parties during their marriage included their approximately $100,000 equity interest in the marital residence, their Individual Retirement Account (hereinafter IRA) and joint bank accounts, the plaintiff's deferred compensation plan, and his future retirement pension, valued at more than $242,000.
The plaintiff left the marital residence in July 1991, after more than 18 years of marriage. In November 1991 the defendant commenced the underlying action, inter alia, for a divorce. The parties entered into a separation agreement entitled a "stipulation of settlement," dated January 9, 1992. The defendant was represented by an attorney in connection with the negotiation of the separation agreement, while the plaintiff represented himself. At that time, the plaintiff was 42 years old and employed by the Nassau County Sheriff's Department, while the defendant was 41 years old, unemployed, and legally blind, albeit able to work part-time and receiving Social Security disability benefits.
The parties visited the defendant's attorney twice in connection with the separation agreement, and the attorney advised the plaintiff repeatedly, both in writing and orally, that he should retain separate counsel. The plaintiff testified that he voluntarily signed the agreement on January 9, 1992, although he contended that he merely "scanned" the agreement and had not understood the provisions that he read. It is undisputed, however, that the agreement prepared by counsel contained the general terms previously agreed upon between the parties during their own private negotiations.
In relevant part, the separation agreement provided that the marital residence subject to the mortgage, the IRAs and joint bank accounts, and the plaintiff's deferred compensation plan in the form of promissory notes would be distributed to the defendant and that she would receive child support and lifetime maintenance even upon remarriage. Further, the agreement provided that the maintenance payment would be increased by a percentage each time one of the children was emancipated and by an additional 4% per annum. For his part, the plaintiff retained his pension, his automobile, some ...