The Second Department determined summary judgment should not have been granted enforcing the parties’ separation agreement. Defendant had raised a question of fact about whether the agreement was unconscionable:
Under the terms of the separation agreement, the defendant relinquished all of the property rights that he acquired during the marriage, including any interest that he may have had in the plaintiff’s partnership interest in a neurological practice and the parties’ four properties in Florida, as well as any spousal maintenance. Given the vast disparity in the parties’ earnings, the evidence that the defendant had no assets of value, and the defendant’s documented medical condition which inhibits his future earning capacity, the defendant’s submissions were sufficient to create an inference that the separation agreement was unconscionable … . In addition, the defendant’s evidence indicating that the plaintiff sold almost $1 million in securities in the months preceding his execution of the separation agreement, the value of which were not accounted for in the list of her bank and brokerage accounts therein, raises a triable issue of fact as to whether the plaintiff concealed assets … . Under these circumstances, the Supreme Court should have exercised its equitable powers and directed further financial disclosure, to be followed by a hearing to test the validity of the separation agreement … . Gardella v Remizov, 2016 NY Slip Op 07924, 2nd Dept 11-23-16
FAMILY LAW (QUESTION OF FACT RAISED ABOUT WHETHER A SEPARATION AGREEMENT WAS UNCONSCIONABLE)/SEPARATION AGREEMENT (QUESTION OF FACT RAISED ABOUT WHETHER A SEPARATION AGREEMENT WAS UNCONSCIONABLE)/UNCONSCIONABILITY (FAMILY LAW, QUESTION OF FACT RAISED ABOUT WHETHER A SEPARATION AGREEMENT WAS UNCONSCIONABLE)