O'Lear v. O'Lear

235 A.D.2d 466, 652 N.Y.S.2d 1008, 1997 N.Y. App. Div. LEXIS 424

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1997
• Status: Published

Opinion

In an action to rescind a separation agreement, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered March 21, 1996, as amended by an order of the same court entered April 19, 1996, which granted the defendant’s motion for summary judgment dismissing the complaint and denied as academic the plaintiff’s cross motion to compel discovery.

Ordered that the order, as amended, is affirmed, with costs.

It is well settled that a separation agreement which is fair on its face will be enforced according to its terms unless fraud, overreaching, or unconscionability is shown (see, Warren v Rabinowitz, 228 AD2d 492). An agreement will not be overturned merely because, in retrospect, some of its provisions were improvident or one-sided (see, Christian v Christian, 42 NY2d 63; Warren v Rabinowitz, supra; Amestoy v Amestoy, 151 AD2d 709). Here, the agreement appears fair on its face, and the plaintiff’s allegations are insufficient to create an inference of overreaching and unconscionability in its execution and terms. Accordingly, the Supreme Court properly dismissed the complaint on the ground that there were no triable issues of fact and denied as academic the plaintiff’s cross motion to compel discovery. Bracken, J. P., O’Brien, Florio and Luciano, JJ., concur.