In this divorce action, defendant husband moves to dismiss the second cause of action in plaintiff wife's complaint seeking to set aside the parties' prenuptial agreement which plaintiff contends is unfair, unreasonable, unconscionable, and the product of defendant's bad faith, deception, undue influence, and overreaching.

Plaintiff and defendant married on December 23, 2005. Plaintiff was then 29 years old, a music teacher with a Master's degree, and reported a net worth of $71,500.00. Defendant was then 35 years old, a college graduate, and an officer and part owner of his family-owned and operated business, and reported a net worth of approximately $2.7 million. Defendant retained an attorney, Mario Papa, Esq., to prepare an antenuptial agreement. In November 2005, plaintiff and defendant met with Mr. Papa to review the proposed agreement. At the time, plaintiff was not represented by counsel, and according to Mr. Papa, he provided to plaintiff at that meeting the names of three attorneys experienced in matrimonial law she might consider to represent her in reviewing the proposed agreement. Shortly thereafter, plaintiff retained Gerard McAuliffe, Jr., Esq., one of the three attorneys Mr. Papa had identified. According to Mr. McAuliffe's affidavit, plaintiff met with him three times in December 2005 before the agreement was signed on December 19th.

The agreement, inter alia, provided for the parties to essentially "opt out" of the equitable distribution and maintenance provisions set forth in the Domestic Relations Law if their marriage were to end in divorce. It also established an expansive definition of separate and a limited definition of marital property and recited the assets that each party owned which would constitute and remain his or her separate property in the event of divorce. It also contained a provision asserting and confirming that adequate asset disclosure both written and oral had occurred.

If the parties were to divorce, the agreement included a formula tied to the parties' gross annual earnings during the marriage to compute the amount of maintenance the wife would be entitled to and the manner and time for such payment.

The agreement also contained provisions establishing the rights of the survivor upon the death of the other, including reciprocal waivers of statutory rights of election and specifying what assets the wife would receive in the event the husband died during the marriage.

In this action commenced in July 2013, plaintiff alleges in her complaint two causes of action. The first seeks judgment of divorce on the grounds of the irretrievable breakdown of the marriage. The second seeks, once again, judgment setting aside the antenuptial agreement. Plaintiff seeks custody of the parties' two children - a girl, age 6, and a boy, age 3, child support, equitable distribution, maintenance, and other ancillary relief. Issue has been joined. In his answer, defendant asserts the defense that both of plaintiff's causes of action fail to state a claim.

Now defendant moves, denominating his motion as one under CPLR 3211 (a) (7), to dismiss the second cause of action in plaintiff's complaint on the ground that it fails to state a cause of action. In addition and if defendant's motion to dismiss were granted, defendant requests, pursuant to CPLR 3103, a protective order limiting disclosure of financial information to that relevant and necessary to the court's determination of child support and maintenance. More specifically, defendant seeks to bar plaintiff from any inquiry concerning the value of the [*2]closely held family corporation and any and all assets that he also contends constitute separate, non-marital property, including the marital residence which he contends is his separate property. Defendant's motion is supported by the agreement, his affidavit, and the discovery notices from plaintiff.

Plaintiff opposes and cross-moves for an order awarding to her expert's fees to value defendant's business and to appraise the marital residence. Plaintiff submits her affidavit with numerous exhibits including the pleadings, copies of the parties' income tax returns for the years 2005 to 2011, the parties' net worth statements, and an affidavit from Mr. McAuliffe.

In reply, defendant submits his second affidavit and one from Mr. Papa.

Briefly, in support of his motion, defendant contends that prior to execution of the agreement, he fully informed plaintiff about his financial affairs and that he fully and accurately disclosed to plaintiff that his assets had a value of approximately $2.7 million as reflected in Exhibit A to the agreement and that there was no deception, overreaching, or coercion on his part. Moreover, defendant contends that plaintiff was fully aware that a prenuptial agreement was a condition to his marriage. Mr. Papa avers that, in accordance with his custom, he informed plaintiff that she ought to secure her own counsel, and since she did not then have an attorney, he provided her with the names of at least three attorneys, including Mr. McAuliffe, with good reputations in matrimonial law. Defendant relates that plaintiff retained Mr. McAuliffe to review the agreement and that changes he suggested but not identified in this record were incorporated into the final version.

In opposition, plaintiff contends that since defendant's motion is characterized as one under CPLR 3211 (a) (7) to dismiss for failure to state a cause of action, the court must accept her allegations in her complaint that the agreement was unconscionable and not fair and not reasonable, and therefore, on its face, her complaint must be sustained. Plaintiff further avers in general terms that before the agreement was signed that defendant hid from her "details of his wealth and income", that defendant's attorney "steered" her to retain Mr. McAuliffe, that defendant discouraged her "from (prior to execution) sharing the agreement with family and friends", and misled her into signing it by telling her "that I was going to get so much from him that he could not afford to divorce me". She further avers that she did not "understand the agreement or its import in relation to what under New York's Domestic Relations Law she might be entitled to be awarded if divorce took place". Plaintiff asserts that she was not provided with a copy of the agreement after it was signed, and not until recently, did she become informed of the full extent and probable value of defendant's pre-marriage holdingsand the value of the rights she, inter alia, agreed to waive, either upon divorce or if defendant predeceased her during the marriage. In short, plaintiff contends that the agreement was and is unconscionable and that her second cause of action ought not be dismissed on this motion. In his affidavit, Mr. McAuliffe states that plaintiff was referred to him by Mr. Papa and then when she consulted him, he did not have defendant's tax returns, pay stubs, or a business evaluation to review.

First addressed is the issue whether the CPLR 3211 (a) dismissal or CPLR 3212 summary judgment standard of review should be applied. While defendant's notice of motion refers to CPLR 3211 (a) (7), the supporting affidavit of defendant's attorney and memorandum of law specifically state that summary judgment dismissing the complaint's second cause of action and [*3]declaring the antenuptial agreement valid and enforceable constituted the relief sought. Moreover, in opposition, plaintiff submits affidavits detailing facts and circumstances attendant to the negotiation and execution of the agreement, as opposed to relying solely on the strength of the allegations made in the complaint. In the court's view, the parties effectively have treated the motion as one for summary judgment, and the court will review the motion as such.

As on all summary judgment motions, the court's initial role is issue identification, not issue resolution, Speller v Sears, Roebuck & Co., 100 NY2d 38, 44 (2003) or stated differently, the court's role is not to try issues of fact but to determine whether there are such issues to be tried. Sommer v Federal Signal Corp., 79 NY2d 540, 554 (1992). Provided the movant establishes by competent and admissible evidence the absence of all material issues of fact, Oswald v Oswald, 107 AD3d 45 (3rd Dept 2013), the nonmovant, to defeat the motion, must demonstrate the existence of material triable issues of fact by "affirmative proof to demonstrate that the matters are real and capable of being established upon a trial". Nelson v Lundy, 298 AD2d 689, 690 (3rd Dept 2002). The facts must be viewed in the light most favorable to the party opposing summary judgment, here the plaintiff. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37 (2004); Czarnecki v Welch, 13 AD3d 952 (3rd Dept 2004). And, in doing so, the court must "accord [the opposing party] the benefit of every reasonable inference from the record proof, without making any credibility determinations". Winne v Town of Duanesburg, 86 AD3d 779, 781 (3rd Dept 2011).

Generally, duly executed prenuptial agreements are valid and enforceable. VanKipnis v VanKipnis, 11 NY3d 573, 577 (2008). "Indeed, there is a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements.'" Bloomfield v Bloomfield, 97 NY2d 188, 193 (2001), quoting Matter of Greiff, 92 NY2d 341, 344 (1998). An agreement, duly executed, must be "considered valid and binding unless the contesting party can establish that he or she was induced by fraud, overreaching or duress attributable to the party seeking enforcement". Pulver v Pulver, 40 AD3d 1315, 1317 (3rd Dept 2007). And, to defeat the motion and cause the matter to be brought to trial, plaintiff must come forward with evidence, not conclusions or speculation, demonstrating an issue of fact that "it was the product of fraud, duress or other inequitable conduct", Cioffi-Petrakis v Petrakis,103 AD3d 766, 767 (2nd Dept 2013), or unconscionable. Darrin v Darrin, 40 AD3d 1391, 1393 (3rd Dept 2007). To be sure, agreements between prospective spouses, "involve a fiduciary relationship requiring the utmost of good faith...[and] the courts [make] it their business when confronted to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity". Christian v Christian,42 NY2d 63, 72 (1977); Petracca v Petracca, 101 AD2d 695 (2nd Dept 2012). Yet, fraud will not be presumed; there must be evidence of concealment, misrepresentation, or deception of some type. Darrin v Darrin, supra; Panossian v Panossian, 172 AD2d 811 (2nd Dept 1991). "...[W]hen there has been full disclosure between the parties, not only of all relevant facts but also of their contextual significance, and there has been an absence of inequitable conduct or other infirmity which may vitiate the execution of the agreement, courts should not intrude so as to redesign the bargain arrived at by the parties on the ground that judicial wisdom in retrospect would view one or more of the specific provisions as improvident or one-sided." Christian v Christian, supra, at 72. [*4]

Guided by these principles, the court must first evaluate plaintiff's position that triable issues regarding fraud, duress, or overreaching exist which preclude a summary determination. Here, the parties had disparate financial resources at the time of their marriage. Defendant held assets that he valued at $2,725,771.62, and by comparison plaintiff held assets that she valued at $71,500.00. All of this is disclosed in the agreement. And now in his net worth statement, defendant identifies his separate assets, including the marital residence, that he valued at $2,732,000.00 [sic] and marital assets that he valued at $76,000.00 in two bank accounts. In her net worth statement, plaintiff identifies her separate property valued now at $48,000.00 excluding personal items such as jewelry. In her opposition to defendant's motion, plaintiff points out that in the agreement defendant did not disclose his 2005 annual income of approximately $259,000.00 and offers her opinion that the $145,000.00 value^[FN1] then placed on his interest in the family corporation, Zinter Handling, Inc., was unconscionably low, as evidence of less than full and complete disclosure, and she further points out that by 2012, the business was paying him $1 million. Smith v Walsh-Smith, 66 AD3d 534 (1st Dept 2009), lv denied 14 NY3d 704 (2010) [Failure to include income in financial disclosure not by itself sufficient to vitiate agreement]. Yet, she does not challenge that defendant disclosed a significant net worth, and plaintiff does not allege that had defendant's 2005 income and a different valuation of his interest in the family business had been set forth, she would not have signed the agreement. What is clear from this record is that at the time of the agreement defendant had considerable means while plaintiff did not, and these disparities were indeed disclosed. see Smith v Walsh-Smith, supra. Plaintiff offers no evidence sufficient to demonstrate an issue of fact regarding fraud.

Likewise, there is no evidence that the plaintiff's free will and volition were overcome by defendant's words or conduct before she executed the agreement. Defendant is frank that his insistence on an antenuptial agreement was motivated by his desire to protect and preserve his separate assets, including his interest in a family owned business and to restrict plaintiff's claims or rights upon divorce or death. The claim that plaintiff was unable to consult with family and friends because to do so would cause their jointly planned "surprise" wedding to no longer be "their" secret does not constitute, in this court's view, evidence of duress.^[FN2] The agreement was not foisted or sprung on the plaintiff at the last minute prior to their wedding ceremony. She had a draft more than a month before the wedding, and once again she met with her attorney three times before she signed the final version. That her attorney was one of the three that defendant's counsel suggested is of little moment and not determinative. Boracas v Boracas, 94 AD3d 551 (1st Dept 2012); Strong v Dubin, 48 AD3d 232 (1st Dept 2008). In short, the court cannot tease from this record sufficient proof that demonstrates the existence of triable issues regarding duress or undue influence by defendant.

The inquiry does not end there. Because of the fiduciary nature of the relationship [*5]between spouses or, in this case, prospective spouses, under the court's equity power, an agreement or certain provisions may also be set aside if "manifestly unfair" and thus unconscionable. Christian v Christian, supra; Infante v Infante, 76 AD3d 1048 (2nd Dept 2010). Regardless of the absence of fraud or duress or undue influence, the court must nonetheless evaluate whether the terms were so unfair "as to shock the conscience and confound the judgment of any [person] of common sense". Christian v Christian, supra at 71; Lounsbury v Lounsbury, 300 AD2d 812, 814 (3rd Dept 2002). Yet, "...an agreement will not be set aside simply because a party relinquished more than the law would have provided", Herr v Herr, 97 AD3d 961, 963 (3rd Dept 2012), or "merely because some terms may seem improvident", Garner v Garner, 46 AD3d 1239, 1240 (3rd Dept 2007), or because marital assets are divided unequally. Lounsbury v Lounsbury, 300 AD2d 812, 814 (3rd Dept 2002). An agreement or portion thereof may be set aside if "so inequitable that no reasonable and competent person would have consented to it". Curtis v Curtis, 20 AD3d 653, 654 (3rd Dept 2005); Bishopp v Bishopp, 104 AD3d 112 (3rd Dept 2013). "...[A]n unconscionable bargain has been regarded as one such as no [person] in his [or her] senses and not under delusion would make on the one hand and as no honest and fair [person] would accept on the other' Hume v Untied States, 132 US 406, 411." Christian v Christian, supra at 71.

To be sure, plaintiff's post-divorce rights are severely limited by the agreement. It provides that plaintiff would be entitled to maintenance equal to 5% of defendant's cumulative gross earnings and 25% of her cumulative gross earnings over the marriage's duration to be paid in five (5) equal annual installments.^[FN3] Thus, provision has been made for plaintiff to receive maintenance based on a formula tied the duration of their marriage and to the parties' not insignificant annual income albeit in an amount perhaps lower than what she might be entitled to if the agreement were set aside. The longer the marriage, presumably the greater the amount of cumulative earnings and thus greater the maintenance would be. And, the duration of five years for transitional maintenance is not manifestly unfair, particularly where as here the divorce action was commenced less than eight (8) years after the marriage, the plaintiff has a Master's Degree, had a teaching position, and both are relatively young and in good health.

In addition, the agreement provides that any appreciation in his separate property, specifically his interest in the family business, even if plaintiff's indirect efforts may have contributed to such appreciation, remains entirely defendant's separate property. Herr v Herr, 97 AD3d 961 (3rd Dept 2012).

At great length, the agreement also excludes from the claims of the other in the event of divorce, contributions to retirement plans made after the marriage. While the waivers were reciprocal, their effect disproportionately benefits the defendant. At the time the agreement was made, the defendant's 401K was valued at $253,193.76 and plaintiff's teacher's retirement plan was valued at $1,500.00. In their statements of net worth, the defendant's 401K is valued at $620,490.00 and the plaintiff's plan at $14,224.73. The disparity is to some extent not set forth in the record attributable to the plaintiff's leaving her teaching career - a choice which [*6]presumably she was not compelled to make.

Upon the death of defendant, the agreement provides that plaintiff's claims of inheritance would be limited to $250,000.00 in cash, a marital residence (more about which later), a motor vehicle, and would include his retirement plan.

The agreement leaves for future agreement or determination child support issues.

While the agreement is strongly in defendant's favor, in its totality, it is not so one sided as to shock the court's conscience with one exception, i.e., the definition of "Marital Property" at page 2, 1. Definitions 1.1 B. particularly viewed with the agreement's expansive definition of "Separate Property".

As defined in the agreement,

"Marital Property" means all that property that Scott and Jennifer purchase or otherwise acquire during the marriage that is owned or held by them jointly, including, without limitation, wedding gifts, automobiles, bank accounts, real property, household furnishings and investments.

While "Separate Property" is defined at page 2, 1. Definitions 1.1A as:

(i) all property, real, personal or other, whatever situated, that each party now holds or owns (including, without limitation, all property listed, referred to, or described in Exhibits A and B attached) regardless of whether held directly or indirectly, in trust or otherwise,

(ii) property acquired by bequest, devise, or descent or gift from a third party,

(iii) compensation received for personal injuries,

(iv) all interests in Retirement plans acquired or contributed during the marriage,

(v) any and all income from, or proceeds of the property described in subparagraphs (i)-(iv) above or the reinvestment thereof, including any property acquired by the exchange or sale of the property described in subparagraphs (i)-(iv) above, whether by reorganization, merger or otherwise, even though the receipt of such income or proceeds may have occurred after the impending marriage, and

(vi) any and all increase in value of the property described in subparagraphs (i)-(iv) above, including, without limitation, any appreciation thereon, regardless of the active, inactive, direct or indirect contribution or counsel, advice, energy or other efforts of either party.

Thus, there are two prerequisites - timing and title - to make property marital. In application, despite approximately $2,755,488.00 in marital gross earnings from 2006 to 2011,^[FN4] the defendant once again lists in his statement of net worth only one jointly titled checking account and one jointly titled savings account with a combined balance that the defendant lists in his statement of net worth as $76,333.00 and plaintiff lists in hers at $81,684.00.

Since the defendant was essentially the sole breadwinner, he had the means and capacity to title accounts as he saw fit and thus to create marital or separate property at his whim. It is obvious that he titled only two existing accounts as joint in comparatively small amounts. This definition of marital property, giving the defendant as it does the power to make separate and to take out of the reach of plaintiff on divorce any and all assets acquired during the marriage [*7]regardless of its duration is manifestly unfair and unconscionable as applied to the circumstances of this case.^[FN5] compare Clermont v Clermont, 198 AD2d 631 (3rd Dept 1993), lv dismissed 83 NY2d 953 (1994) [Provision in agreement declared unconscionable granted to husband all marital property unless wife demanded in writing that husband acknowledged property she purchased with her separate property would remain hers] Barocas v Barocas, 94 AD3d 551 (1st Dept 2012) [Triable issue whether waiver of spousal support is unconscionable as applied to the facts as they existed at time enforcement sought].

The court strikes from the definition of Marital Property, page 2, paragraph 1. Definitions 1.1B the words "That is owned or held by them jointly" and none other. Just to be clear, the agreement's definition of "Separate Property" is left intact.

Defendant's motion is granted to the extent that the antenuptial agreement is declared valid and enforceable except for that which is stricken as unconscionable and as to that provision his motion is denied, all without costs.

Lastly, the plaintiff's request for expert fees to value the defendant's interest in his family business and the marital residence and defendant's cross motion for a protective order are now considered.

Once again, the agreement defines at great length that the defendant's business interests owned at the time of his marriage are separate property and goes on to provide that any appreciation in value, even if attributable to the plaintiff's direct or indirect contributions, is likewise separate. In short, the defendant's business interests are not subject to equitable distribution.

Further, the not insignificant values that defendant assigned to them, both in the agreement and in his statement of net worth, may suffice for purposes of this court's inquiry into the value of defendant's separate property in determining what will be equitable in the distribution of marital property. In short, the court declines to direct the defendant to pay for a valuation of defendant's business interests.

Lastly, the marital residence ought to be valued at the defendant's initial expense, subject to potential future adjustment on equitable distribution. Notwithstanding the agreement's provision that a marital residence acquired after the marriage be titled in the plaintiff and defendant, as tenants by the entirety, the defendant apparently took title to the marital residence in Saratoga Springs in his name alone. Whether the defendant breached the agreement or whether there is anysubstance to the defendant's apparent position that the marital residence is not marital property are left for another day. If the parties cannot agree on an appraiser, each is to submit the names of two New York State licensed real estate brokers or appraisers and the court will appoint one, not necessarily from those submitted. The written valuation is to be filed with the court or before March 31, 2014; the parties are directed to cooperate with the appraiser in making available the premises for inspection.

And, inasmuch as defendant has disclosed tax returns and W-2's and K-1 statements for the years 2005 through 2011, he need only produce income tax returns, including W-2's and K-1 statements for 2012 and 2013.

Defendant's motion for a protective order is granted, except as specified above, and [*8]plaintiff's cross motion to compel defendant to contribute towards the fees of her experts is denied, except as specified above, all without costs.

This constitutes the decision and order of the court. The original decision and order is forwarded to counsel for defendant. All original motion papers are delivered to the Supreme Court Clerk/County Clerk for filing. Counsel for defendant is not relieved from the applicable provisions of CPLR 2220 relating to filing, entry and notice of entry of the decision and order.

So Ordered.

DATED: February 7, 2014

Saratoga Springs, New York

HON. THOMAS D. NOLAN, JR.

Supreme Court Justice