Rosenzweig v. Singer

18 A.D.3d 853, 795 N.Y.S.2d 471

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 2005
• Status: Published

Opinion

— In an action for a divorce and ancillary relief, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Woodard, J.), entered February 20, 2004, which, inter alia, granted the plaintiff’s motion for summary judgment and awarded him a judgment of divorce.

Ordered that the order and judgment is affirmed, with costs.

The Supreme Court properly determined that the plaintiff made a prima facie showing of entitlement to judgment as a matter of law pursuant to Domestic Relations Law § 170 (6). Thus, the burden shifted to the defendant, in opposing summary judgment, to lay bare her proof and, avoiding conclusory allegations, to set forth evidentiary proof sufficient to establish the existence of a triable issue of fact which required a trial of the action (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In opposition, the defendant failed to raise a triable issue of fact. Her allegations were insufficient to create an inference of fraud, duress, overreaching, or unconscionability (see Christian v Christian, 42 NY2d 63 [1977]; Strangolagalli v Strangolagalli, 295 AD2d 338 [2002]; Kammerer v Kammerer, 278 AD2d 282 [2000]; Warren v Rabinowitz, 228 AD2d 492 [1996]), nor did she raise a triable issue of fact regarding the plaintiffs substantial compliance with the terms of the parties’ separation agreement (see Christian v Christian, 42 NY2d 63 [1977]; Stern v Stern, 114 AD2d 408, 409 [1985]; Berman v Berman, 72 AD2d 425, 429 [1980], affd 52 NY2d 723 [1980]).

The defendant’s remaining contention is without merit. H. Miller, J.P., Ritter, Goldstein and Spolzino, JJ., concur.