Glaser v. Glaser

127 A.D.2d 741, 512 N.Y.S.2d 132, 1987 N.Y. App. Div. LEXIS 43225

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 1987
• Status: Published

Opinion

In an action for rescission of a separation agreement, the defendant husband appeals from an order of the Supreme Court, Nassau County (Robbins, J.), dated January 24, 1986, which denied his motion to dismiss the complaint for failure to state a cause of action.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff wife alleges in her amended complaint in this action for rescission of the separation agreement between herself and the defendant husband that (1) at the time of the execution of the agreement she was under the influence of cocaine and lacked the capacity to enter into a contract, and (2) that the agreement was fraudulently obtained. Neither cause of action may withstand the defendant’s motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action.

Assuming for the purposes of argument that the plaintiff was under the influence of cocaine at the time of the execution of the agreement, she acquiesced in the agreement and received benefits under it for a considerable period of time subsequent to being under the influence of cocaine and by her actions ratified the agreement (see, Beutel v Beutel, 55 NY2d ; Sheindlin v Sheindlin, 88 AD2d 930, 931). Further, the plaintiffs cause of action sounding in fraud was not alleged with sufficient particularity to comply with CPLR 3016 (b) (see, Greschler v Greschler, 71 AD2d 322, 324-325, mod on other grounds 51 NY2d 368). Mangano, J. P., Bracken, Niehoff and Fiber, JJ., concur.