Kenna v. Kenna

266 A.D.2d 513, 698 N.Y.S.2d 548, 1999 N.Y. App. Div. LEXIS 12303

Opinion

—In an action, inter alia, to vacate a stipulation of settlement, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Golar, J.), dated October 5, 1998, as, in effect, denied those branches of her motion which were for summary judgment on the complaint and for a preliminary injunction enjoining the defendant from dissipating certain assets.

Ordered that the order is modified, on the law, by (1) deleting the provision thereof which, in effect, denied that branch of the motion which was for summary judgment on the complaint and substituting therefor a provision granting that branch of the motion, and (2) deleting the provision thereof which denied that branch of the motion which was for a preliminary injunction; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant, and the matter is remitted to the Supreme Court, Queens County, for a hearing on the issue of whether the defendant is dissipating marital assets, and thereafter for a determination of that branch of the motion.

The subject stipulation of settlement was patently unconscionable (see, e.g., Weinstock v Weinstock, 167 AD2d 394, 395). Moreover, there is an issue of fact concerning the possible disposition of certain assets by the defendant to the detriment of the rights of the plaintiff and a hearing is warranted on this issue (see generally, Loderhose v Loderhose, 216 AD2d 275; Sacks v Sacks, 181 AD2d 727). Bracken, J. P., Santucci, Altman, Friedmann and H. Miller, JJ., concur.