- October 24, 2017
Catherine S. Bridge, Staten Island, NY, for appellant.
Kuharski, Levitz & Giovinazzo (Arnold E. DiJoseph, P.C.,
New York, NY, of counsel), for respondent.
C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
from an order of the Supreme Court, Richmond County
(Catherine M. DiDomenico, J.), dated December 31, 2014. The
order, insofar as appealed from, after a hearing, denied the
defendant's motion to set aside the parties'
prenuptial agreement and granted the plaintiffs cross motion
for summary judgment determining that the prenuptial
agreement is valid and enforceable.
that the order is reversed insofar as appealed from, on the
law, with costs, the defendant's motion to set aside the
parties' prenuptial agreement is granted and the
plaintiffs cross motion for summary judgment determining that
the prenuptial agreement is valid and enforceable is denied.
parties were married in 2007, and have three children.
Shortly before their marriage, they entered into a prenuptial
agreement. The agreement provided, inter alia, that, in the
event of separation or divorce, each party waived the right
to the other's separate property, including property
acquired from the proceeds of separate property acquired
during the marriage; each party would keep separate bank
accounts; and the plaintiffs maintenance obligation would be
limited to a lump sum payment of $20, 000. In 2008, the
parties moved into the marital residence, which was purchased
with funds from the plaintiff's bank account, and the
deed and mortgage were placed solely in his name. The
plaintiff has been practicing medicine since 1987 and earns
approximately $300, 000 annually. The defendant, who had been
employed part-time as a sales person when the parties met,
did not work outside the home during the marriage but
dedicated herself to the care of the household and the
parties' children, one with special needs.
October 2013, the plaintiff commenced this action for a
divorce and ancillary relief. The defendant moved to set
aside the prenuptial agreement on the ground, inter alia,
that it is unconscionable. The plaintiff cross-moved for
summary judgment determining that the prenuptial agreement is
valid and enforceable. After a hearing, the Supreme Court
granted the plaintiff s cross motion and denied the
defendant's motion, finding, inter alia, that the
prenuptial agreement is not unconscionable. The defendant
agreement between spouses or prospective spouses should be
closely scrutinized, and may be set aside upon a showing that
it is unconscionable, or the result of fraud, or where it is
shown to be manifestly unfair to one spouse because of
overreaching on the part of the other spouse"
(Bibeau v Sudick, 122 A.D.3d 652, 654-655; see
Christian v Christian, 42 N.Y.2d 63, 73; Lombardi v
Lombardi, 127 A.D.3d 1038, 1041). "An agreement is
unconscionable ifit'is one which no person in his or her
senses and not under delusion would make on the one hand, and
no honest and fair person would accept on the other, the
inequality being so strong and manifest as to shock the
conscience and confound the judgment of any person of common
sense'" (Sanfilippo v Sanfilippo, 137
A.D.3d 773, 774; quoting Label v Label, 70 A.D.3d
898, 899 [internal quotation marks omitted]; see McKenna
v McKenna, 121 A.D.3d 864, 865). An agreement that might
not have been unconscionable when entered into may become
unconscionable at the time a final judgment would be entered
(see Domestic Relations Law § 236[B]; Maddaloni v
Maddaloni, 142 A.D.3d 646, 649; Gottlieb v
Gottlieb, 138 A.D.3d 30, 46; Anonymous v
Anonymous, 123 A.D.3d 581, 584). The burden of proof as
to unconscionability is on the party seeking to set aside the
agreement (see Ku v Huey MinLee, 151 A.D.3d 1040,
1041; Matter of Fizzinoglia, 118 A.D.3d 994, 996,
affd26 N.Y.3d 1031).
contrary to the Supreme Court's determination, the
defendant sustained her burden of establishing that the
prenuptial agreement was, at the time this action was before
the court, unconscionable. Enforcement of the agreement would
result in the risk of the defendant's becoming a public
charge. The defendant, who is unemployed, largely without
assets, and the primary caregiver for the parties' young
children, would, under the prenuptial agreement, receive only
$20, 000, in full satisfaction of all claims, even though the
plaintiff earns approximately $300, 000 annually as a
physician (see Maddaloni v Maddaloni, 142 A.D.3d at
649-650; Kessler v Kessler,33 A.D.3d 42, 46;
Tartaglia v Tartaglia,260 A.D.2d 628, ...