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Mulloy v. Benito-Berse

Supreme Court of New York, First Department

October 31, 2013

Charles W. Mulloy, Plaintiff-Appellant,
v.
Lucie Benito-Berse, Defendant-Respondent.

Sanders, Ortoli, Vaughn-Flam & Rosenstadt LLC, New York (Marc S. Gottlieb of counsel), for appellant.

Parmet & Greenblatt, LLC, New York (Wendy J. Parmet of counsel), for respondent.

Mazzarelli, J.P., Renwick, DeGrasse, Feinman, Gische, JJ.

Order, Supreme Court, New York County (Lori S. Sattler, J.), entered July 5, 2012, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff alleges that, to induce him to enter the separation agreement, defendant represented to him that she would need maintenance to pay for an apartment for herself while she looked for full-time employment. He claims that this representation was false, and that defendant knew of its falsity at the time of the negotiations and execution of the agreement. He alleges that defendant was not required to pay rent, was supported financially, and had no need of maintenance.

The separation agreement does not set forth the reason plaintiff agreed to make a lump sum maintenance payment to defendant, although it states that the payment "shall be made as part of, not in addition to, the distribution" of certain brokerage accounts held by the parties. We find, however, that plaintiff's allegation of fraud is belied by his own acknowledgment that the terms of the separation agreement, as communicated by his own independent legal counsel, were fair and reasonable, and his acknowledgment that no representation had been made by either party except as expressed in the agreement. Plaintiff waived his right to full financial disclosure, which included information about assets, income and expenses, which may have revealed whether defendant actually needed the money for an apartment. Having failed to make use of the means he possessed to discover whether defendant needed the lump sum payment for an apartment, plaintiff cannot claim that he justifiably relied on her alleged misrepresentations (see Stuart Silver Assoc. v Baco Dev. Corp., 245 A.D.2d 96, 98-99 [1st Dept 1997]; Havell Capital Enhanced Mun. Income Fund, L.P. v Citibank, N.A., 84 A.D.3d 588, 589 [1st Dept 2011]).

We have considered plaintiff's remaining arguments and find them unavailing.


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