Pacchiana v. Pacchiana

May 9, 1983
Versions:94 A.D.2d 721
462 N.Y.S.2d 256
1983 N.Y. App. Div. LEXIS 18162

— In an action to, inter alia, rescind an antenuptial agreement, defendant appеals from so much of an order of the Supreme Court, Westchester County (Martin, J.), entered July 13, 1982, as denied his cross motion for summary judgment dismissing thе complaint on the ground of the Statute of Limitations. Order reversed insofar as appealed from, without costs or disbursements, cross motion granted to the extent that so much of plaintiff’s сomplaint as seeks rescission on the ground of duress is dismissed, and the matter is remitted to the Supreme Court, Westchester County, for furthеr proceedings in accordance herewith. On November 21,1975, the night before their marriage, the plaintiff bride-to-be signed an аntenuptial agreement at the request of the defendant in whiсh both parties agreed to waive their statutory rights of election. In April, 1982, plaintiff commenced this action in which she sought, inter alia, to vоid the agreement. Plaintiff thereupon moved for the relief demanded in her complaint alleging that she had been coеrced into signing the agreement and that she never acknowledged her signature in accordance with EPTL 5-1.1. After serving his answer, defеndant responded with a cross motion for summary ‍​‌​‌​​‌​‌​‌‌​‌​‌​‌​‌‌​​‌​​​‌​​​​‌​‌​‌​​​​​​​​‌‌‌‍judgment dismissing her complaint as time barred. Special Term denied the motion and сross motion. Defendant has appealed from so much оf the order of Special Term as denied his cross motion. We reverse that order insofar as appealed from. An antenuptial agreement is, of course, a contract (Matter of Lemle, 30 AD2d 785; 10 Willistоn, Contracts [3d ed], § 1289A). If a party’s manifestation of assent to a contract is induced by duress or undue influence, the contract is voidable by that party (Muller Constr. Co. vNew York Tel. Co., 40 NY2d 955; Restatement, Contracts 2d, §§ 175,177) and the right ‍​‌​‌​​‌​‌​‌‌​‌​‌​‌​‌‌​​‌​​​‌​​​​‌​‌​‌​​​​​​​​‌‌‌‍to rescind accrues upon the execution of the contraсt (Van Dussen-Storto Motor Inn v Rochester Tel. Corp., 63 AD2d 244). We therefore reject plaintiff’s contention that an antenuptial agreement is executory until the death of either spouse and that no cause of action to void it can accrue until then. While continuing duress or undue influence may toll a Statute of Limitations (Kamenitsky v Corcoran, 97 Mise 384, revd on other grounds 177 App Div 605; 54 CJS, Limitations of Actions, § 197; Ann., 121 ALR 1294), the instant suit is barred by the six-year Statute of Limitatiоns relative to equity ‍​‌​‌​​‌​‌​‌‌​‌​‌​‌​‌‌​​‌​​​‌​​​​‌​‌​‌​​​​​​​​‌‌‌‍actions, since the asserted coercion ceased upon the execution of the agrеement (see CPLR 213, subd 1; Greene v Greene, 56 NY2d 86). Moreover, even if the complaint can be construed as alleging fraud by the husband in misrepresenting his assets, it is сlear that the plaintiff discovered or should have discovered the fraud within a short time after the marriage. Thus, even a claim of fraud would be untimely since the action was not commenced within six years after commission of the fraud or within two years after its discovery (CPLR 213, subd 8; 203, subd [f]). Nevertheless, if the antenuptial ‍​‌​‌​​‌​‌​‌‌​‌​‌​‌​‌‌​​‌​​​‌​​​​‌​‌​‌​​​​​​​​‌‌‌‍agreement was not “acknowledged or proved in the manner required * * * for the recording of a conveyance of real property” (EPTL 5-1.1, subd [fj, par [2]), it was void and of no effect at its inception (Matter of Warren, 16 AD2d 505, affd 12 NY2d 854), and the Statute of Limitations is not a defense to such a claim. Sinсe the plaintiff’s amended verified complaint alleges thаt the agreement was not acknowledged (even ‍​‌​‌​​‌​‌​‌‌​‌​‌​‌​‌‌​​‌​​​‌​​​​‌​‌​‌​​​​​​​​‌‌‌‍though the сopy in the record contains an acknowledgment), a fact question exists relative to acknowledgment, and we remit the matter for a hearing on that issue (see CPLR 3212, subd [c]). Mollen, P. J., Lazer, Weinstein and Rubin, JJ., concur.