ORDERED that the motion (001) by order to show cause of the defendant, which seeks an order vacating and canceling the Notice of Pendency filed by the plaintiff against the former marital residence, now the defendant's residence, located at 5 Bank Court, Greenlawn, New York 11740, and granting the defendant's attorney legal fees in the sum of $1,000.00 is granted to the extent that the Notice of Pendency, dated September 12, 2005 and filed September 14, 2005, is hereby vacated; and it is further

ORDERED that the motion (002) by the defendant, which seeks an order granting summary judgment in favor of the defendant and sanctions against the plaintiff is hereby granted only to the extent that summary judgment is granted and the complaint is dismissed; and it is further

ORDERED that the plaintiff's cross-motion (003), which seeks, inter alia, an order for summary judgment in favor of the plaintiff is hereby denied; and it is further

ORDERED that counsel for the defendant shall serve a copy of this Order upon counsel for the plaintiff pursuant to CPLR §2103(b)(1), (2) or (3) within twenty (20) days of the date of this Order, and shall thereafter file the affidavit of service with the Suffolk County Clerk.

The plaintiff and defendant were married on November 24, 1989. In or about August 2001, the parties engaged the services of a mediator, Fredrick Klarer, Esq. ("Mediator"), to assist them in reaching a stipulation to dissolve the parties' marriage. On or about February 15, 2002, the plaintiff and defendant executed a Stipulation of Settlement (hereinafter "the Agreement"), which was prepared by the Mediator. At the time the parties entered into the Agreement, there was no action for divorce pending. A judgment of divorce was subsequently entered in the Clerk's office on September 17, 2002 pursuant to the September 10, 2002 Order of the Hon. Sandra L. Sgroi, and the Agreement was incorporated but not merged into the judgment.

In this action, William Ricca commenced a post-judgment plenary proceeding to set aside the parties' February 15, 2002 Agreement in its entirety or, in the alternative, to set aside the following provisions of the Agreement: Article 2.2 (Child Support and Related Expenses); Article 3 (Equitable Distribution); and Article 5 (Maintenance). The August 4, 2004 Summons and Complaint consists of twenty-six (26) causes of action, three hundred fifty-two (352) paragraphs and more than sixty (60) pages. In essence, the plaintiff's complaint sounds in fraud and overreaching, premised on allegations that prior to signing the Agreement, the plaintiff was not fully informed that the defendant had engaged independent counsel during negotiations of the Agreement. The complaint also alleges that the plaintiff was not fully informed of his legal rights regarding child support, equitable distribution and maintenance. According to the plaintiff, such non-disclosure resulted in an unfair and unconscionable Agreement with incorrect support calculations.

In conjunction with the plenary action, the plaintiff also filed a notice of pendency against the former marital residence, now the defendant's residence, located at 5 Bank Court, Greenlawn, New York 11740. In the notice of pendency, the plaintiff notes that his underlying action seeks a redistribution of the marital estate in accordance with Domestic Relations Law §236. In relevant [*2]part, CPLR § 6501 states that a "notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property ..." (see also, Gross v Gross, 114 AD2d 1002, 495 NYS2d 441 [2d Dept 1985]; Doar v Kozick, 87 AD2d 603, 448 NYS2d 56 [2d Dept 1982]).

Under CPLR §6514(b), "[t]he court, upon motion of any person aggrieved . . . may direct any county clerk to cancel a notice of pendency, if the plaintiff has not commenced or prosecuted the action in good faith." The powerful impact that a notice of pendency has on the alienability of property, when conjoined with the facility with which it may be obtained, calls for its narrow application to only those lawsuits directly affecting title to, or the possession, use, or enjoyment of, real property (Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 486 NYS2d 877 [1984]). In this case, the plaintiff claims that the former marital residence should now be subject to equitable distribution.

The fact that a plaintiff may be entitled to equitable distribution with regard to the parties' residence, however, does not necessarily give rise to the extraordinary privilege of a notice of pendency (Gross v Gross, supra ; Fakiris v Fakiris, 177 AD2d 540, 575 NYS2d 924 [2d Dept 1991]). Indeed, where a money judgment would provide an adequate remedy, the filing of a lis pendens is not appropriate (Long Island City Savings & Loan Assoc. v Gottlieb, 90 AD2d 766, 455 NYS2d 300 [2d Dept 1982]). Notably, prior to the commencement of this action, the parties' former marital residence had been owned solely by the defendant for more than two-and-a-half years. Accordingly, even if this Court were to "resurrect" the principle of equitable distribution as relates to the subject residence, a money judgment could be fashioned, which would provide adequate remedy for the plaintiff. Since such a judgment would not directly affect the title to, or the possession, use or enjoyment of, real property, cancellation of the lis pendens is warranted (see, Shkolnik v Krutoy, 32 AD3d 536, 819 NYS2d 839 [2d Dept 2006]). Furthermore, cancellation of the lis pendens is warranted where, as here, summary judgment is granted in favor of a defendant owner of the property (see, Gallagher Removal Service, Inc. v. Duchnowski, 179 AD2d 622, 578 NYS2d 584 [2d Dept 1992]). The defendant's motion to vacate and cancel the notice of pendency is, therefore, granted.

In addition to her motion to cancel the notice of pendency, the defendant also filed a motion (002) for summary judgment pursuant to New York CPLR §3212.In relevant part, CPLR §3212(b) provides that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." When a party moving for summary judgment makes a prima facie showing of entitlement to judgment, it becomes incumbent upon the party opposing the motion to come forward with evidentiary facts rebutting that showing and demonstrating the existence of a triable issue of fact (Federal Deposit Ins. Corp. v Hyer 66 AD2d 521, 413 NYS2d 939 [2d Dept 1979], app dismd without opp, 47 NY2d 951 [1979]; Braun v. New York Life Ins. Co., 55 AD2d 99, 389 NYS2d 927 [4th Dept 1976], affd 42 NY2d 1020, 398 NYS2d 657 [1977]). Opposing proofs are insufficient to defeat a motion for summary judgment when they merely consist of conclusory allegations in the nature of surmise, conjecture and suspicion (Id) [*3](citations omitted). It is incumbent upon the party opposing a motion for summary judgment to come forward with proof of evidentiary facts showing the existence of a genuine issue (Federal Deposit Ins. Corp. v Hyer, supra ).

In Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131 [1974], the Court of Appeals held that since summary judgment deprives the litigant of his or her day in court, it is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (see also, Millerton Agway Co-op v. Briarcliff Farms, 17 NY2d 57, 268 NYS2d 18]); however, when there is no genuine issue to be resolved at trial, the case should be summarily decided, as an unfounded reluctance to employ the summary judgment remedy will only serve to swell the trial calendar and deny other litigants the right to have their claims properly adjudicated (Andre v Pomeroy, supra ).

With regard to separation agreements, it is well established in New York that judicial review is to be exercised sparingly, with the goal of encouraging parties to settle their differences by themselves (see Christian v Christian, 42 NY2d 63, 396 NYS2d 817 [1977]; Korngold v Korngold, 26 AD3d 358, 810 NYS2d 206 [2d Dept 2006]; Brennan v Brennan, 305 AD2d 524, 759 NYS2d 744 [2d Dept 2003]). A party seeking to set aside a separation agreement that is fair on its face has the burden to prove fraud, duress, or overreaching, or that the agreement or stipulation is nonetheless unconscionable (Korngold v Korngold, supra ; Brennan v Brennan, supra ; see also, Wilson v Neppell, 253 AD2d 493, 677 NYS2d 144 [2d Dept 1998]). Unsupported and conclusory allegations are insufficient as a matter of law to satisfy that burden (Korngold, supra ). Without such a showing, a separation agreement that is fair on its face will be enforced according to its specific terms (see, Torsiello v. Torsiello, 188 AD2d 523, 591 NYS2d 472 [2d Dept 1992]; Ruxton v. Ruxton, 181 AD2d 876, 581 NYS2d 448 [2d Dept 1992]; Stoerchle v. Stoerchle, 101 AD2d 831, 475 NYS2d 489 [2d Dept 1984]).

The essence of the plaintiff's claims of fraud and overreaching is that, although the defendant had engaged separate counsel, she told the plaintiff that she had not done so. Whether or not the defendant had "secretly" engaged independent counsel, however, is of no consequence, since it is clear from the terms of the Agreement and the advice of the Mediator that the plaintiff had the same opportunity as the defendant to engage independent counsel, secretly or otherwise. For example, the parties' retainer agreement with the Mediator clearly advises the parties that "in the event that either of you feels that you require independent legal counsel to represent your interests you will engage counsel" (emphasis added). In addition, the January 14, 2002 letter from the Mediator to both parties states, "I also strongly suggest that Mr. Ricca retain separate counsel to review the agreement from his perspective. Mrs. Ricca has benefitted from extensive revisions based on the views of her own attorney. I must counsel Mr. Ricca to do the same" (emphasis added). This letter is dated approximately one month before the parties signed the Agreement. Although the plaintiff denies receiving this letter prior to signing the Agreement, in view of the totality of evidence, such denial is not sufficient to create a question of fact for a jury, nor to overcome the defendant's prima facie showing of entitlement to summary judgment.

In addition to the Mediator's advice, Article 10.2 of the Agreement itself states in relevant [*4]part, that the parties "have each been advised by the mediator/s to engage separate counsel to review this agreement on their individual behalves and each has declined to do so" (emphasis added). Even if the defendant did promise the plaintiff that she had no separate counsel, such promise would also be inconsequential under Article 10.10 of the Agreement in which the plaintiff agreed that "[t]he parties are not relying on any promises or statements other than those set forth or referred to in this agreement (emphasis added).

Generally, where, as here, the intention of the parties is fully determinable from the language employed in the agreement, then summary judgment is proper (Long Island R.R. Co. v Northville Industries Corp., 41 NY2d 455, 393 NYS2d 925 [1977]). Where a question of intention is determinable by the written agreement, the question is one of law, which is appropriately decided on a motion for summary judgment (Mallad Constr. Corp. v County Federal Sav. & Loan Assoc., 32 NY2d 285, 344 NYS2d 925 [1973]) (citations omitted).

Accordingly, the fact that the plaintiff was not also represented by independent counsel when the Agreement was entered does not, without more, establish overreaching or require automatic nullification of the Agreement (see, Korngold v Korngold, 26 AD3d 358, 810 NYS2d 206 [2d Dept 2006]; Levine v Levine, 56 NY2d 42, 451 NYS2d 26 [1982]; Warren v Rabinowitz, 228 AD2d 492, 644 NYS2d 315 [2 Dept 1996]; Tirrito v. Tirrito, 191 AD2d 686, 595 NYS2d 786 [2d Dept 1993]; Chauhan v. Thakur, 184 AD2d 744, 585 NYS2d 482 [2d Dept 1992]). This is especially true given the fact that the unrepresented plaintiff expressly acknowledged that he was informed of his or her right to retain separate counsel (Korngold v Korngold, supra ). Here, the express language of the Agreement is fair on its face and should be enforced according to its specific terms (see, Torsiello v. Torsiello, 188 AD2d 523, 591 NYS2d 472 [2d Dept 1992]; Ruxton v. Ruxton, 181 AD2d 876, 581 NYS2d 448 [2d Dept 1992]; Stoerchle v. Stoerchle, 101 AD2d 831, 475 NYS2d 489 [2d Dept 1984]).

With regard to child support, the plaintiff's complaint essentially alleges that the Agreement fails to include proper calculations of the basic child support obligations under child support standards, and that it fails to state valid reasons for any amount that deviated from those standards. Contrary to the plaintiff's assertions, however, it is clear from Article 2.2.4 (Factors in Determining Child Support) that the parties did, in fact, expressly consider various factors in arriving at the stated child support amount.

The plaintiff also claims not to have been fully informed of the rights, privileges and obligations conferred upon him pursuant to statute regarding payment of child support. Notwithstanding this claim, however, Article 2.2.5.1 of the Agreement states that the "parties agree that they have been advised of and are fully aware of the provisions contained in the New York State Child Support Standards Act, subdivision 1-b of Section 240 of the New York Domestic Relations Law" (emphasis in original). Similarly, Article 2.2.5.2 states that the "unrepresented party, if any, has received a copy of the child support standards chart promulgated by the commissioner of Social Services pursuant to Social Services Law section 111-1" (emphasis added). [*5]

Likewise, despite the plaintiff's claims to the contrary, the Agreement shows that he was, indeed, informed of his legal rights and obligations concerning equitable distribution. In this regard, Article 3.7.1 (Equitable Distribution of All Property) states in relevant part that "[e]ach party has been fully advised of his or her respective rights and obligations under the New York Domestic Relations Law, Section 236 Part B, commonly known and referred to as the equitable distribution law, as well as such rights and obligations which arise from other provisions of law pertaining to marriage and the dissolution of marriage" (emphasis added). In signing the Agreement, the plaintiff also acknowledged having been informed of the law regarding maintenance. In pertinent part, Article 5.1 (Support) states that "[e]ach party has been specifically advised of the provisions of subdivision six of Part B Section 236 of the Domestic Relations Law with respect to maintenance and makes this agreement as to maintenance or waiver thereof with full knowledge of such rights as are set forth in that statute" (emphasis added).

In addition, the plaintiff contends that he was unaware that the defendant's CPA license and master's degree were marital property, and that such should now be equitably redistributed; however, the moving papers establish that the defendant's CPA license was obtained prior to the marriage, and that it was merely the issuance of the license which occurred after the parties were married. With respect to the defendant's master's degree, the moving papers also show that such degree was paid for entirely by the defendant's employer and not from marital funds. In any event, the plaintiff was fully aware of the defendant's license and master's degree at the time the parties negotiated and executed the Agreement. Under Article 3.7.4 of the Agreement, the parties expressly considered numerous factors in determining how the marital estate would be distributed.

Similarly, the parties considered various factors in reaching their agreement with respect to maintenance, as set forth in Article 5.2 of the Agreement. Likewise, although the plaintiff alleges that prior to signing the Agreement he was not fully informed of the Agreement's tax consequences, under Article 7.2 he acknowledged that both parties were "advised by their respective attorneys that there may be certain tax clauses pertaining to this agreement and that each party has been directed and advised to obtain independent tax advise (sic) from qualified tax accountants or tax counsel prior to execution of this agreement" (emphasis added). The plaintiff also claims that he was denied his right to a copy of the defendant's Sworn Statement of Net Worth. Such right, however, was expressly waived by the plaintiff under Article 7.3, which states, "Each party acknowledges that he or she has a right to be furnished with a net worth statement in a form acceptable to a Court under Domestic Relations Law Section 236. EACH PARTY WAIVES THE RIGHT TO BE FURNISHED WITH A SWORN NET WORTH AFFIDAVIT" (emphasis in original).

Despite the plaintiff's claim that the marital estate should now be redistributed, he expressly accepted the terms of the Agreement and waived any claims not stated in the Agreement. For example, in executing the Agreement, the plaintiff agreed in Article 8.1.2 that "[t]he parties hereby accept the provisions of this agreement in place of, and in full and final settlement of, any and all claims against each other for their support (emphasis added). In Article 8.1.3, he agreed that "[o]ther than as provided in this agreement, each party waives any and all rights which he or she may have, under Domestic Relations Law Section 236, Part B, to . . . an award of equitable [*6]distribution . . . and each agrees never to seek through judicial proceedings, or otherwise, . . . an award of equitable distribution . . ." (emphasis added).

Despite the plaintiff's post-judgment allegations of fraud and overreaching related to the defendant's independent legal advice, and despite his allegations that the Agreement is patently unfair, in signing the Agreement the plaintiff expressly acknowledged the absence of fraud, the fairness of the Agreement and the Mediator's advice for the parties to engage separate counsel. For example, in Article 1.1, the plaintiff acknowledged that "[b]oth parties believe that the provisions of this agreement are in all respects fair, reasonable and equitable. . . (emphasis added).

Similarly, under Article 7.1, the plaintiff also agreed that:

Each [party] has had a full opportunity and has consulted at length with his or her attorney, accountant, actuary, and appraiser regarding all of the circumstances hereof. They each acknowledge that this agreement has not been the result of any fraud, duress or undue influence exercised by either party upon the other or by any other person or persons upon the other. Both parties acknowledge that this agreement has been achieved after full disclosure, competent legal representation, and honest negotiations. The parties agree that this agreement is fair and reasonable at the date of the execution hereof (emphasis added).

Likewise, in signing the Agreement, the plaintiff agreed to the following under Article 10.2 of the Agreement:

[The parties] have each "been advised by the mediator/s to engage separate counsel to review this agreement on their individual behalves and each has declined to do so. Each party fully understands his or her legal rights and liabilities hereunder and both parties acknowledge that this agreement is not the result of any fraud, duress or undue influence exercised by either upon the other, or by any other person upon either party. Having declined independent legal advice and with such knowledge, each party clearly understands and consents to all of the provisions hereof. The parties acknowledge that they execute this agreement with full understanding of the terms and conditions of this agreement and that they do so freely and voluntarily. Each party acknowledges that the terms and provisions of this agreement are fair and equitable (emphasis added).

The plaintiff's belated and conclusory claims of unfairness, approximately two-and-a-half years after he signed the Agreement, do not warrant setting aside the Agreement. Indeed, a separation agreement will not be overturned merely because it was improvident, not the most advantageous to the dissatisfied party, or because a dissatisfied party had a change of heart (see, Warren v Rabinowitz, 228 AD2d 492, 644 NYS2d 315 [2 Dept 1996]; Wilutis v Wilutis, 184 AD2d 639, 587 NYS2d 171 [2d Dept 1992]; Amestoy v. Amestoy, 151 AD2d 709, 543 NYS2d 141 [2d Dept 1989]; Sontag v. Sontag, 114 AD2d 892, 495 NYS.2d 65 [2d Dept 1985]). The plaintiff's opposing papers fail to raise questions of fact sufficient to defeat summary judgment and fail to make the requisite showing of fraud, duress, overreaching or unconscionability necessary to set aside the parties' Agreement (Strangolagalli v Strangolagalli, 295 AD2d 338, 742 NYS2d 914 [2d Dept [*7]2002]). Therefore, summary judgment for the defendant is warranted.

As for the defendant's request for costs in connection with the plaintiff's filing of the lis pendens, the defendant argues that such filing was improper and that the plaintiff's refusal to voluntarily cancel the notice of pendency warrants an award of costs and expenses. In opposing the defendant's request for costs, counsel for the plaintiff argues that under the circumstances, in an effort to protect her client's interests, it may have constituted legal malpractice for counsel not to have filed the notice of pendency. CPLR §6514(c) provides that "[t]he court, in an order cancelling a notice of pendency . . . may direct the plaintiff to pay any costs and expenses occasioned by the filing and cancellation, in addition to any costs of the action" (emphasis added). Under the totality of the circumstances presented herein, the Court, in its discretion, finds that an award of costs and expenses pursuant to CPLR §6514(c) is not warranted (see, Rabinowitz v. Larkfield Bldg. Corp., 231 AD2d 703, 647 NYS2d 820 [2d Dept 1996]).

With regard to the defendant's request for legal fees, Article 10.3 of the Agreement permits such fees in the event of a default under the Agreement. No such default is alleged herein. Furthermore, with respect to the defendant's request for costs and sanctions pursuant to 22 NYCRR §130 1.1 and §130 2.2, the Court finds, in its discretion, that such an award is not warranted under the circumstances presented herein. Accordingly, that branch of the defendant's summary judgment motion is denied.

Finally, in view of summary judgment granted to the defendant pursuant to this Order, the plaintiff's cross-motion for summary judgment is denied.

This constitutes the Order and Judgment of the Court.

Dated: ____________________________________________

PETER H. MAYER, J.S.C.