Panaggio v. Panaggio

256 A.D.2d 1115, 684 N.Y.S.2d 732, 1998 N.Y. App. Div. LEXIS 14212

Opinion

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted defendant’s motion for a protective order. Plaintiff failed to establish “the requisite legitimate factual predicate’ for the discovery sought and there is no basis to depart from the general rule that financial disclosure is inappropriate unless and until the existing separation agreement is set aside” (Krehling v Krehling, 190 AD2d 1039, 1040; see also, Fakiris v Fakiris, 177 AD2d 540, 543; cf., Gilsten v Gilsten, 137 AD2d 411, 413). The court also properly granted defendant’s motion for summary judgment dismissing the complaint seeking rescission of the parties’ 1990 stipulation on the grounds of fraud and duress. Plaintiff was represented by competent counsel during protracted settlement negotiations and agreed to the stipulation in open court. She accepted the benefits of the agreement for six years, and she then sought to modify the terms of the stipulation, thereby acknowledging its validity. Although she was aware of the allegations forming the basis of her fraud claim since at least 1992, she did not commence this action to set aside the stipulation until 1996, after her application to modify the stipulation was denied. Under those circumstances, the court properly held that plaintiff had ratified the agreement (see, McKeown v McKeown, 237 AD2d 890; Reader v Reader, 236 AD2d 829; Gloor v Gloor, 190 AD2d 1007). (Appeal from Order of Supreme Court, Monroe County, Polito, J. — Summary Judgment.) Present — Denman, P. J., Pine, Pigott, Jr., Callahan and Boehm, JJ.