Michalowski v. Michalowski

286 A.D.2d 712, 730 N.Y.S.2d 448, 2001 N.Y. App. Div. LEXIS 8554

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 2001
• Status: Published

Opinion

—In an action for a divorce and ancillary relief, the defendant husband appeals from (1) an order of the Supreme Court, Suffolk County (Oliver, J.), dated May 3, 2000, which granted the plaintiff wife’s motion for summary judgment dismissing his counterclaims to vacate a stipulation of settlement entered into by the parties on June 24, 1999, and (2) so much of a judgment of the same court entered February 2, 2001, as incorporated the terms of the stipulation.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed insofar as appealed from; and it is further,

Ordered that the wife is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

It is well settled that stipulations of settlement are favored by the courts and are not lightly set aside (see, Bruckstein v Bruckstein, 271 AD2d 389). Thus, contrary to the husband’s contention, it was his burden to show that the stipulation was the result of fraud or overreaching, or that its terms were unconscionable. It was not the wife’s burden to prove that agreement was fair and reasonable (see, Jacobs v Jacobs, 234 AD2d 425; Wilutis v Wilutis, 184 AD2d 639). The Supreme Court correctly dismissed his counterclaims seeking to vacate the stipulation. Goldstein, J. P., Friedmann, McGinity and Adams, JJ., concur.