McGrath v. Parker

Feb 17, 2004
Versions:4 A.D.3d 457
771 N.Y.S.2d 691
2004 N.Y. App. Div. LEXIS 1691

In an action, inter alia, to set aside a separation agreement, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated September 30, 2002, which, among other things, granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

A party seeking to set aside a separation agreement which is fair on its face must prove fraud, duress, overreaching, or that the agreement is unconscionable (see Wilson v Neppell, 253 AD2d 493, 494 [1998]). Here, the defendants established their entitlement to judgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, the plaintiff submitted affidavits that were conclusory, vague, and contradicted by documentary evidence. Such conclusory allegations are insufficient to raise an issue of fact, precluding summary judgment (see Davidoff v Davidoff, 93 AD2d 805 [1983]). Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint (see Davidoff v Davidoff, supra).

The plaintiffs remaining contentions are without merit. S. Miller, J.E, H. Miller, Crane and Rivera, JJ., concur.