James A. Ruggiero, appellant,
Anne-Louise DePalo, respondent. Index No. 16346/14
Argued-June 6, 2017
B. Mayer, New York, NY, for appellant.
Anne-Louise DePalo, Staten Island, NY (John Marangos of
counsel), respondent pro se.
C. BALKIN, J.P. SHERI S. ROMAN SANDRA L. SGROI COLLEEN D.
DECISION & ORDER
action, inter alia, to rescind a postnuptial agreement that
was incorporated but not merged into the parties'
judgment of divorce, the plaintiff appeals from so much of an
order of the Supreme Court, Kings County (Landicino, J.),
dated September 30, 2015, as granted those branches of the
defendant's cross motion which were pursuant to CPLR
3211(a)(7) to dismiss so much of the first cause of action as
alleged fraud and for summary judgment dismissing the
remainder of the first cause of action.
that the order is affirmed insofar as appealed from, with
plaintiff and the defendant were married in February 2004.
After the defendant commenced a divorce action, the parties
entered into a postnuptial agreement dated February 20, 2008,
which was incorporated but not merged into the parties'
judgment of divorce dated January 23, 2009. In January 2014,
the plaintiff commenced this action, inter alia, to rescind
the postnuptial agreement, alleging that it was procured
through fraud, duress, coercion, and overreaching by the
defendant, and that it was unconscionable. As relevant to
this appeal, the defendant thereafter cross-moved, inter
alia, pursuant to CPLR 3211(a)(7) to dismiss so much of the
first cause of action as alleged that the postnuptial
agreement was procured through fraud, and for summary
judgment dismissing the remainder of the first cause of
action, which alleged that the postnuptial agreement was
procured through duress, coercion, and overreaching, and that
it was unconscionable. The Supreme Court granted those
branches of the defendant's cross motion, and the
a motion to dismiss [pursuant to CPLR 3211(a)(7)], the sole
criterion is whether the subject pleading states a cause of
action, and if, from the four corners of the complaint,
factual allegations are discerned which, taken together,
manifest any cause of action cognizable at law, then the
motion will fail" (RBE N. Funding, Inc. v Stone Mtn.
Holdings, LLC, 78 A.D.3d 807, 808 [internal quotation
marks omitted]). The court must "accept the facts as
alleged in the complaint as true [and] accord plaintiffs the
benefit of every possible favorable inference" (Leon
v Martinez, 84 N.Y.2d 83, 87; see Ackerman v
Kesselman, 100 A.D.3d 577, 578; RBEN. Funding, Inc.
v Stone Mtn. Holdings, LLC, 78 A.D.3d at 809). Bare
legal conclusions, however, are not presumed true (see 3
E. 54th St. N.Y., LLC v Patriarch Partners, LLC, 90
A.D.3d 418, 419).
a plaintiff brings a cause of action based upon fraud,
'the circumstances constituting the wrong shall be stated
in detail'" (Sargiss v Magarelli, 12 N.Y.3d
527, 530, quoting CPLR 3016[b]). Here, contrary to the
plaintiffs contention, the Supreme Court properly granted
dismissal of so much of the first cause of action as alleged
fraud. The plaintiffs conclusory allegations of fraud were
insufficient to set forth such a cause of action in
accordance with the applicable pleading requirements (cf.
Sargiss v Magarelli, 12 N.Y.3d at 531).
Supreme Court also properly granted that branch of the
defendant's cross motion which was for summary judgment
dismissing the remainder of the first cause of action.
"In determining a motion for summary judgment, the court
must view the evidence in a light most favorable to the
nonmoving party ... and afford such party the benefit of
every favorable inference" (Gardella v Remizov,
144 A.D.3d 977, 979 [internal quotation marks omitted]).
"A motion for summary judgment should not be granted
where the facts are in dispute, where conflicting inferences
may be drawn from the evidence, or where there are issues of
credibility" (id. at 979 [internal quotation marks
omitted]). Conclusory allegations, however, are insufficient
to defeat summary judgment, and a plaintiff opposing the
motion must provide more than a mere reiteration of those
factual allegations contained in the complaint (see
Spaulding v Benenati, 57 N.Y.2d 418, 425; S. J.
Capelin Assoc. v Globe Mfg. Corp., 34 N.Y.2d 338, 343;
Cioffi-Petrakis v Petrakis, 72 A.D.3d 868, 869;
Ricca v Ricca, 57 A.D.3d 868, 869).
agreement between spouses which is fair on its face will be
enforced according to its terms unless there is proof of
unconscionability, or fraud, duress, overreaching, or other
inequitable conduct" (McKenna v McKenna, 121
A.D.3d 864, 865; see Gardella v Remizov, 144 A.D.3d
at 978). Here, in opposition to the defendant's prima
facie showing of entitlement to judgment as a matter of'
law (see Alvarez v Prospect Hosp68N.Y.2d320, 324;
Gardella v Remizov, 144 A.D.3d at 979-980), the
plaintiff failed to raise a triable issue of fact as to
whether the postnuptial agreement was procured through
duress, coercion, or overreaching, or that it was
unconscionable (cf Gardella v Remizov, 144 A.D.3d at
the Supreme Court properly granted the subject branches of