Packer v. Packer

233 A.D.2d 261, 650 N.Y.S.2d 142, 1996 N.Y. App. Div. LEXIS 12137

Opinions

—Order, Supreme Court, New York County (Jacqueline Silbermann, J.), entered August 23, 1995, which, inter alia, denied defendant’s cross motion to compel financial discovery of plaintiffs present financial condition, affirmed, without costs.

On a prior appeal, this Court affirmed the motion court’s denial of defendant’s motion to dismiss the complaint in this post-divorce plenary action to rescind a stipulation of settlement signed by the parties in August 1988. (Packer v Packer, 225 AD2d 314.) Plaintiff’s action is premised on several grounds, including, among others, that defendant prevented plaintiff from obtaining independent counsel, selected her attorney and then attended the two cursory meetings between her and counsel, and did not reveal the extent of his assets, and that no negotiations between the parties were ever conducted and that she had no input into the document that was presented for her signature.

It appears that sometime after the parties entered into the stipulation, the plaintiff purchased a vacation home in Quogue, Long Island for $500,000, of which 80% was mortgaged. Although the record contains conflicting allegations and no proof whatsoever of whether the purchase was made one or two years after the stipulation was signed, resolution of this factual dispute does not affect resolution of the question of whether the motion court erred in refusing to expand the scope of discovery to include the plaintiffs post-stipulation financial condition, as this information is not material and relevant to her financial condition at the time the stipulation was signed.

The courts have consistently held that in an action to rescind an agreement, post-agreement financial discovery is not permitted unless and until such agreement is set aside (see, e.g., Garguilio v Garguilio, 168 AD2d 666, 667 ["current (financial) circumstances have no relevance unless and until the (prior) separation agreement is set aside”]; Kaufman v Kaufman, 125 AD2d 293; Lazarus v Lazarus, 114 AD2d 1012). In Pentecost v Pentecost (125 AD2d 558), the defendant-husband sought a protective order to prohibit the plaintiff-wife’s discovery of his post-separation agreement financial records. The Appellate Division, Second Department unanimously reversed the lower court’s denial of a protective order, stating: "The defendant[-husband’s] present financial condition is not relevant to the plaintiff[-wife’s] claim that the separation agreement is null and void on the ground of fraud or unconscionability and will not become an issue unless and until the separation agreement or its financial provisions is set aside” (supra, at 559).

We are not persuaded by defendant’s argument that the instant case presents a unique set of factual circumstances justifying departure from the general rule. Plaintiff’s complaint contains allegations regarding her financial inability to retain an attorney of her choosing at the time of the execution of the stipulation and does not put her subsequent and present financial condition in issue. In any event, it certainly cannot be said that the motion court abused its discretion by delineating the scope of discovery in the manner that it did. Concur— Ellerin, Ross, Tom and Mazzarelli, JJ.