653 N.Y.S.2d 768 | N.Y. App. Div. | 1997
—Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying plaintiff's motion to strike defendant’s counterclaim seeking partial rescission of the parties’ separation agreement. Defendant’s allegations of unconscionability, unfairness, fraud and duress are not substantiated by proof sufficient to justify setting aside the parties’ agreement (see, Christian v Christian, 42 NY2d 63, 71-73; Hunt v Hunt [appeal No. 2], 184 AD2d 1010, 1011). Moreover, by accepting the benefits of the agreement for 151/2 months before attempting to seek rescission, defendant is deemed to have ratified the agreement (see, Beutel v Beutel, 55 NY2d 957, 958; Luce v Luce [appeal No. 2], 213 AD2d 978, 978-979). (Appeal from Order of Supreme Court, Onondaga County, Stone, J.—Summary Judgment.) Present—Green, J. P., Pine, Callahan, Balio and Boehm, JJ.
