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CAUSE OF ACTION ALLEGING THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION WAS UNCONSCIONABLE SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action alleging the stipulation of settlement in this divorce action was unconscionable should have been dismissed:

… [W]e agree with the defendant that the Supreme Court should have granted that branch of her cross motion which was pursuant to CPLR 3211(a) to dismiss the second cause of action, seeking to set aside the stipulation on the ground of unconscionability. “‘An unconscionable bargain 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'” … . “An agreement, however, is not unconscionable ‘merely because, in retrospect, some of its provisions were improvident or one-sided'” … . Here, the terms of the stipulation, while perhaps improvident or one-sided in favor of the defendant, were not so unfair as to shock the conscience and confound the judgment of any person of common sense. Heinemann v Heinemann, 2020 NY Slip Op 08044, Second Dept 12-30-20

 

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DEFENDANT’S FEIGNED ISSUE OF FACT DID NOT RAISE A QUESTION OF FACT IN... THE REFEREE REPORT IN THIS FORECLOSURE ACTION RELIED ON HEARSAY AND THEREFORE...