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PRELIMINARY STATEMENT The Plaintiff, Michael A.

Carosella (hereinafter Plaintiff), submits this Memorandum of Law in response to Defendant, Linda A. Carosellas (hereinafter Defendant), Order to Show Cause seeking to rescind a separation agreement between the two parties executed October 16, 1985, and incorporated, not merged, into a divorce decree on January 3, 1986. The Defendant seeks an equitable distribution of Plaintiffs pension. Both Plaintiff and Defendant were represented by separate counsel during the execution of the separation agreement and during the divorce action. Both have lived according to the terms of that agreement for twenty-three years, and only now has Defendant raised this issue. Her unreasonable delay constitutes a ratification of the terms of the separation agreement, including a mutual release of any past, present or future actions. Moreover, Defendants application for the equitable relief of rescission is inappropriately brought to this Court in the form of an order to show cause, rather than a proper plenary action. Defendants application for rescission is subject to the equitable defense of laches being brought after such an unreasonable delay. The Defendant should be foreclosed from seeking such relief according to the principle of res judicata, this being an issue that could have been raised in the matrimonial action. The Plaintiff requests that this Court dismiss Defendants application in its entirety since it cannot be sustained and that Plaintiff should be granted reasonable attorneys fees. STATEMENT OF FACTS Plaintiff and Defendant have been divorced since January 3, 1986 (see Carosella affidavit, Ex. D, Judgment of Divorce,). Prior to commencing the matrimonial action, on October 16, 1985 Plaintiff entered into a separation agreement with Defendant to

dispose of and divide assets of the marriage (see Carosella affidavit, Ex. A, Separation Agreement, p. 1, line 1 & paragraph D). Both parties were represented by separate counsel at the time of execution of the agreement (see Carosella affidavit, p. 1, paragraph 4). Plaintiff then commenced an action for divorce on October 19, 1985 (see Carosella affidavit, Ex. B, Affidavit of Regularity of Paul Crapsi). The matter was heard before a matrimonial referee on December 6, 1985 and a Judgment of Divorce was granted on January 3, 1986 (see Carosella affidavit, Ex. C, Copy of Transcript Carosella v. Carosella & Ex. D, Judgment of Divorce). The separation agreement was incorporated and not merged into the divorce decree surviving the decree as was contemplated at its execution (see Carosella affidavit, Ex. A, Separation Agreement, paragraph 15). Since January of 1986 Plaintiff and Defendant have been living according to the terms of the separation agreement as incorporated in the divorce judgment without any objections. Those terms include a clause of mutual release releasing both Plaintiff and Defendant from any past, present, or future actions, known or unknown, including any and all claims with respect to marital property (see Carosella affidavit, paragraph 8). Defendant now makes an application to the Court seeking to rescind the separation agreement so that she may obtain a portion of Plaintiffs pension relying on the Majauskas decision (474 N.Y.S. 2d 699). When the separation agreement was executed Majauskas was only a little over a year old and not widely known, and as such the separation agreement did not provide for equitable distribution of Plaintiffs pension. The separation agreement did provide for the sale and equitable distribution of the proceeds of the marital home. Plaintiff is now a pay status retiree and would be subject

to irreparable harm if the Defendants application is granted. The Plaintiff has been relying on the terms of the separation agreement for upwards of twenty-three years and it is unfair for the Defendant to now seek to change those terms that were agreed upon so long ago. ARGUMENT I. APPLICATION OF THE DEFENDANT FOR RESCISSION OF THE SEPARATION AGREEMENT SHOULD BE DISMISSED AS SUCH APPLICATION MAY ONLY BE MADE BY A PLENARY ACTION AND NOT A MOTION. The Defendants motion seeking rescission of the parties 1985 separation agreement should be dismissed because the Defendant has failed to bring an appropriate plenary action. Such relief may only be sought in an action or by way of an affirmative defense. Christian v. Christian 42 N.Y.2d 63, 72 (N.Y. 1977), Deppe v. Deppe 731 N.Y.S.2d 624 (N.Y.A.D. 2nd Dept. 2001). It is well established that a motion is not the proper vehicle to obtain the rescission of a separation agreement as Defendant attempts to do here. Case law has also determined that an inappropriate motion may be dismissed without a review of the merits for failure to commence a plenary action. In Spataro v. Spataro 702 N.Y.S.2d 342 (N.Y.A.D. 2nd Dept. 2000) the Appellate Division made clear that a court need not even entertain a motion on the merits for rescission of a separation agreement, as a motion is not the proper vehicle for challenging a separation agreement incorporated but not merged into a divorce judgment. That is precisely what the Defendant here attempts to do in an effort to renegotiate an agreement that was executed twenty-three years ago in which she was represented by counsel. Defendants motion for rescission should be dismissed without even reaching a discussion on the merits because it is not the appropriate vehicle for such an application.

A.

Defendant cannot sustain an application for rescission of the separation agreement on the merits because she makes no showing of fraud, duress or overreaching to substantiate her claim.

According to New York case law an action for the rescission of a separation agreement requires the party seeking the relief to show some proof of fraud, duress, or overreaching. Brennan-Duffy v. Duffy 804 N.Y.S.2d 399 (N.Y.A.D 2nd Dept. 2005), Rubin v. Rubin 823 N.Y.S.2d 218 (N.Y.A.D. 2nd Dept. 2006), Reiner v. Reiner 874 N.Y.S.2d 143 (N.Y.A.D. 2nd Dept. 2009). A separation agreement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability. Reiner quoting Rubin. The Defendant here has made no allegations of fraud or overreaching on the part of the Plaintiff at the time the separation agreement was executed in 1985. Both parties were represented by counsel and agreed to live by the terms of this agreement, and have done so for the past twentythree years. Even if the Defendants application to this Court for rescission were presented in the appropriate plenary action, she could not sustain that action as she has provided no proof to indicate there was any overreaching on the part of the Plaintiff. Moreover, it is not the burden of the Plaintiff to prove the agreement was fair and reasonable, but rather, it is the Defendants burden to show the agreement was the result of fraud or overreaching. (Brennan-Duffy, supra at 400). As the court in Reiner, supra, articulated, concerning an action to rescind a separation agreement, the spouse seeking to rescind the agreement must demonstrate the existence of a triable issue of fact sufficient to raise an inference of fraud, duress, overreaching or unconscionability. It is true that when dealing with a separation agreement the court requires a fiduciary relationship with the utmost good faith. (Christian, supra). In Christian the Court of

Appeals articulated the standard in which a court may review the terms of a separation agreement stating that, courts may look at the terms of the agreement to see if there is an inference of overreaching in its execution. If the execution . . . be fair, no further inquiry will be made. In that case the Court found that the husband affirmatively manipulated the drafting of the separation agreement so as to conceal the true values of certain securities. With regard to the present facts this Defendant has presented no proof sufficient to raise an inference of that type of fraud or overreaching. She merely claims that at the time the agreement was executed she was never informed she was entitled to a portion of Plaintiffs pension, and that there is no provision in the separation agreement or judgment of divorce for the equitable distribution of Plaintiffs pension earned during the marriage (affidavit of Linda A. Carosella, p.1, paragraph 4), neither of which indicate any overreaching on the part of the Plaintiff. At the time of the execution of the separation agreement both parties were represented by counsel and negotiated an agreement based on what both believed to be the marital assets. Without any evidence of fraud or overreaching the Defendant cannot sustain an application for rescission of the separation agreement, therefore her motion should be dismissed. II. THERE IS NO REASONABLE EXCUSE FOR THE DEFENDANTS DELAY IN BRINGING THIS APPLICATION FOR RESCISSION AND THE PLAINTIFF WOULD SUFFER IRREPARABLE HARM THEREFORE THE DEFENDANTS CLAIM IS BARRED BY THE EQUITABLE DEFENSE OF LACHES. The Defendant here waited twenty-three years before bringing an application to rescind the separation agreement. She has offered no reasonable excuse as to the delay in her actions only that no one told her of what she may have been entitled to. Her delay has

caused the Plaintiff to rely on the terms of the separation agreement, building a new life in the past two and a half decades, and now is a retiree with his pension in a pay status. Since, any change now would cause the Plaintiff irreparable harm, the Defendant should be barred from asserting her claim of rescission based on the equitable defense of laches. The doctrine of laches is an equitable defense that bars the enforcement of a right where there has been an unreasonable, inexcusable delay that results in prejudice to a party. Skrodelis v. Norbergs 707 N.Y.S.2d 197 (N.Y.A.D. 2nd Dept. 2000), Matter of Barabash 31 N.Y.2d 76 (N.Y. 1972). Here the Defendants only reason for the delay is that no one informed her she may have been entitled to a share of the Plaintiffs pension earned during the marriage. At the time the separation agreement was executed in October of 1985, the Majauskas decision governing the equitable distribution of pension rights was roughly a year old having been decided in April of 1984. It is conceivable that neither counsel for the Defendant, nor counsel for the Plaintiff at the time of the separation agreement had common knowledge of Majauskas and therefore did not have reason to know of any right the Defendant may have had to a portion of the pension. Moreover, just as the Defendant claims she had no knowledge at the time of the execution of the agreement as to her possible entitlement to a portion of the Plaintiffs pension, there is no reason to believe that at that same time the Plaintiff would have possessed any superior knowledge as to the legal characterization of an asset and whether that asset was subject to equitable distribution. However, since October of 1985 Majauskas has become commonplace in matrimonial proceedings, yet the Defendant waited twenty-three years to assert this claim. Meanwhile, the Plaintiff has abided by the terms of the agreement and has relied

on those terms for two and a half decades, providing the Defendant with the assets that were stipulated in the agreement. The Defendant offers no excuse for the delay. It is not reasonable to rescind the terms of a fair and equitable agreement where one party will suffer harm simply because the other has finally informed herself as to what she may be entitled to. Since the Defendant can offer no reasonable excuse as to her prolonged delay in asserting this claim for rescission, and because the Plaintiff would suffer harm and prejudice if that relief were granted, the Defendants claim should be barred on the basis of the equitable defense of laches. III. THE DEFENDANT HAS RATIFIED THE SEPARATION AGREEMENT AND THEREFORE SHOULD BE BARRED FROM SEEKING RESCISSION. Where a party to an agreement has lived according to the agreement, and received the benefits of that agreement for a period of time before seeking rescission of the agreement, that party is deemed to have ratified the agreement. Reader v. Reader 653 N.Y.S.2d 768 (N.Y.A.D. 4th Dept. 1997 delay of 15 months). In Beutel v. Beutel 55 N.Y.2d 957 (N.Y. 1982) the Court of Appeals held the terms of a separation agreement to have been ratified by the Plaintiff wife who sought rescission based on an incapacity to contract, after she received benefits under the terms of that separation agreement for two years. The Court found that the plaintiff wifes allegations did not constitute duress as she claimed, and even if she were under duress at the time of the execution of the agreement there was nothing to support that duress carrying through the two years wherein she received benefits under the agreement. Id. Similarly, the Defendant here makes no allegations of fraud or overreaching at the time of execution or carrying through the following twenty-three years to warrant rescission of the terms. The

Defendant therefore should be deemed to have ratified the terms of the 1985 separation agreement. Additionally, the Plaintiff performed his obligations under the terms of the separation agreement for twenty-three years, and the Defendant received the benefits of that performance. Both parties were represented by counsel at the time the agreement was executed and both signed the agreement as a binding instrument to govern their separation and subsequent divorce. The Defendant then received her share of assets according to the terms of this agreement, including child support, proceeds from the sale of a piece of real property and business, and she received one half of the net proceeds from the sale of the marital residence. To rescind the terms of the agreement now ignores that fact that had the Defendant asserted her claim to a portion of the pension twentythree years ago, the negotiations and resulting terms of the agreement may have been completely different. The Defendant has benefited from the agreed upon terms of the separation agreement showing her assent to those terms for the past twenty-three years and it is unfair to the Plaintiff to set aside those terms so long after the negotiation. Since the Defendant waited a substantial period of time before seeking rescission of the terms of the separation agreement she should be deemed to have ratified those terms, including a mutual release clause. In Stacom v. Wunsch 570 N.Y.S.2d 32 (N.Y.A.D. 1st Dept. 1991) the court held that due to a wifes ratification of a separation agreement, accepting benefits for five years without protest, a general release clause in the agreement barred her from bringing any claims to try and set aside the terms of the agreement. Here, the mutual release clause in paragraph 14 of the separation agreement reads as follows:

Except as otherwise expressly set forth herein, each party hereby remises, releases, and forever discharges the other from all causes of action, claims, rights, and demands whatsoever in law or in equity, known or unknown, past, present, or future, which either of the parties hereto ever had, or now, or hereafter may have, against the other, including without limitation all claims with respect to all marital property as that term is used in Domestic Relations Law Section 236 or arising out of the marital relationship, except any cause of action for divorce, annulment, or separation, and any defense thereto, in any pending or future action and except any cause of action arising out of or in connection with the breach of this agreement. (Carosella affidavit, Ex. A, Separation Agreement, paragraph 14). As a result of the Defendants twenty-three year delay in bringing her claim she has ratified the terms of the separation agreement as they were executed in 1985, including the mutual release clause and as such should be barred from bringing any claim, known or unknown, against the Plaintiff having to do with the terms of the agreement or their subsequent divorce. IV. THE DEFENDANT COULD HAVE LITIGATED THE ISSUE OF HER RIGHT TO A PORTION OF THE PLAINTIFFS PENSION IN THE DIVORCE ACTION AND THEREFORE HER APPLICATION FOR RESCISSION SHOULD BE FORCLOSED BY THE DOCTRINE OF RES JUDICATA. The Defendants application seeks relief which could have been sought at any time during the divorce action. She was represented by counsel at the time she agreed the separation agreement was to be incorporated into a divorce decree. As the court reasoned in Jeannotte v. Jeannotte 651 N.Y.S.2d 757 (N.Y.A.D. 3rd Dept. 1997), Domestic Relations Law 234 does not grant litigants continuous opportunities to seek review of issues which could have been, but were not, raised in a prior matrimonial action. In that case the court foreclosed the Plaintiff wifes action to set aside the terms of a separation agreement incorporated into a judgment of divorce because she could have raised the issue of equitably dividing her husbands pension at the divorce action eight years earlier. Id.

Similarly, in Lippman v. Lippman 612 N.Y.S.2d 532 (N.Y.A.D. 4th Dept. 1994), the Fourth Department, precluded a Plaintiff wife from asserting that the terms of a separation agreement were orally modified and therefore should be set aside after they were incorporated into a divorce judgment because she could have raised that issue at the divorce action in 1992. The court went on to articulate that to allow plaintiff to pursue her new allegation would destroy or impair rights and interests established by the judgment of divorce, which determined that the . . . separation agreement was valid and enforceable and expressly incorporated the terms of the separation agreement. Id. Here, the Defendant wifes application to rescind the terms of the separation agreement threatens to destroy the rights and interests that were established over two decades ago when those terms where incorporated into a divorce judgment. The underlying issue for which the Defendant seeks rescission of the separation agreement, an equitable share in the Plaintiffs pension, could have been litigated at the time of the matrimonial action in 1986. Since Defendant could have raised this issue at that time and did not she should be precluded from seeking review of that issue now twenty-three years later. CONCLUSION For the aforementioned reasons stated herein, the Defendants application for relief should be dismissed. Moreover, the Plaintiff requests that this Court grant such other and further relief as it deems just and proper.

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Dated: Niagara Falls, New York January ____, 2010 Respectfully submitted, By:_________________

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