The following papers numbered 1 through 16 were considered on plaintiff's motion, brought by Order to Show Cause (Seq. #1) , and defendant's cross-motion (Seq. #2) regarding the parties Settlement Agreement, dated April 6, 2012:

PAPERSNUMBERED

Order to Show Cause, Affidavit, Affirmation, Exhibits A-D1-6

Opposition and Notice of Cross-Motion, Affirmation, Affidavit,

Exhibits A-D7-13

Memorandum of Law14

Affidavit in Reply and Affirmation in Opposition15-16

Upon the foregoing papers, the decision and order of the court is as follows:

In this action for divorce, plaintiff A.B. ("Plaintiff") moves by Order to Show Cause (Seq. #1) for an order directing that the child support provisions of the parties' Settlement Agreement, dated April 6, 2012, be rescinded and declared null and void, or in the alternative, the entire Settlement Agreement be rescinded and declared null and void. Defendant Y.B ("Defendant") cross-moves (Seq. No.2) seeking an order declaring the parties' Settlement Agreement to be valid and enforceable, or alternatively, in the event the court declares the child support provision invalid, modifying the Agreement to the extent necessary to effectuate the intent of the parties, granting a Judgment of Divorce and incorporating and not merging the Settlement Agreement, and granting counsel fees to defendant in the amount of $50,000.

Facts

The parties were married on ****, 1997 in Orlando, Florida. There are three unemancipated children of the marriage. The parties separated in January, 2009, and then again in May, 2010. Plaintiff is a 50% equity partner in ****, a brokerage firm with equity trading operations primarily in New York City, and with a presence outside the United States. Defendant is 100% owner and operator of a business known as **** located in ***** , New York. Plaintiff's and defendant's respective businesses were created during the marriage.

On April 6, 2012, after ongoing mediation sessions lasting several years, the parties entered into a Settlement Agreement("Agreement"). [Pltff's Exh. A; Deft's Exh. A].

Settlement Agreement

The Agreement under review is 53 pages in length, initialed by the parties on [*2]each page, signed and acknowledged. The parties entered into the Agreement working with a mediator for a period of 3 years. It resolved, inter alia, issues of custody and access, maintenance, child support, and equitable distribution. [Pltff's Exh. A; Deft's Exh. A].

As is relevant to the issues now before the court, the Agreement provides as follows:

Article III (a),(b) of the Agreement entitled "Financial and Asset Disclosure", states:

(a) The parties acknowledge that they have fully disclosed all

items of personal property, be it joint separate, present and real,

or future and speculative, as intended under Section 236.B of the

Domestics Relations Law and known as the concept of Equitable

Distribution. The parties herein agree that they have specifically

waived the "compulsory financial disclosure" requirement under

Section 236 Part B, Subdivision 4 of the Domestic Relations Law

and under 22 NYCRR Part 117, and affirm that there is no pending matrimonial action or proceeding in which alimony, maintenance

and support, or support of a child or children is an issue; nor is there

any support or maintenance proceeding pending in the Family Court

or in any other jurisdiction. The parties have not exchanged SWORN

NET WORTH AFFIDAVITs, but waive any further discovery, such as interrogatories, depositions and the exchange of documents. Each

has made a full and complete disclosure of all his or her assets,

liabilities, income and expenses, past, present, future, or contingent

including any asset or property of any kind in which either party may

have a beneficial interest. This financial information was relied on by

the parties and the Mediator and was the basis on which each party

entered into the financial provisions of this mediated agreement and

will have the same force and effect as a Sworn Net Worth Affidavit.

(emphasis not added)

(b) The Husband has disclosed, to the best of his knowledge, his

gross personal 2010 income from whatever source derived as reported

on IRS Form 1040 as approximately $156,427.00. The parties agree to

use the 2010 income because their 2011 income is not yet available.

The Husband discloses that in no event was his income from any

and all sources more than $156,427.00 in said year. However,

for purposes of this agreement, the parties agree to use an

imputed income of$1,200,000 in computing the child support calculation under the Child Support Standards Act. The Husband has disclosed all of

his assets in this agreement to the Wife. The husband represents and warrants that he has no assets with a total value more than $2,500.00

other than as set forth in this agreement [*3]

[Pltff's Exh. A, Deft's Exh. A, page 4-5]

At Article VI (a),(b),(c), (f), and (g) entitled "Mediation and Legal Representation", the

Agreement states:

(a) In keeping with the conciliation (sic) in mediation, the parties

acknowledge that they are entering into this Agreement freely

and voluntarily, that they have ascertained and weighed all the

facts and circumstances likely to influence herein. The parties

herein have, with the aid of (the mediator), negotiated an

agreement between them and the terms and provisions thereof.

The parties each acknowledge that this Agreement was scrivened

for them by (preparing attorney); that she has represented

neither of them individually in the negotiation, preparation or

execution of this Agreement, and that her services have been

limited to reducing the agreement to writing at their request.

The parties acknowledge and agree and confirm that the mediator

did not provide legal representation to either of the parties, or

both of them, and although the mediator may have provided

information or opinions concerning the state of the law generally,

neither party has relied upon such information or opinions in

executing this Agreement. (emphasis added)

(b) The parties acknowledge that they each have been advised

to obtain, and each has had ample opportunity to obtain

independent legal advice and representation of his or her own

selection with respect to the negotiation, preparation and execution

of this Agreement. Each party is aware that he or she has the

right to review and consult with an individual attorney throughout

the negotiation, preparation and execution of this Agreement.

To this end and after careful consideration, the Husband has

been represented by (plaintiff's former attorney) and the Wife has beenrepresented by (defendant's former attorney).

(c) The parties acknowledge that they have been provided with

information as to the definition of marital and separate property.

(f) The parties acknowledge that no independent investigation

has been made by their review attorneys or the Mediator of the

character or of (sic) value of the parties' property, or the extent

of the debt or amount of income of the parties. The parties have [*4]

have instructed the mediator and counsel that they desire to make

this Agreement without any further independent investigation by

counsel. The parties understand and acknowledge that they are

relying on their mutual disclosures in making this Agreement, and

that they are not relying on their counsel for any independent

investigation by counsel. The parties understand and acknowledge

that they are relying on their mutual disclosures in making this

Agreement, and that they are not relying on their counsel for any

independent verifications of the accuracy or completeness of those

disclosures.

(g) This Agreement has been fully explained to each party by his

and her respective review attorney. Each party has carefully read

this Agreement and is aware of its contents and legal effect.

Each party acknowledges that he and she have made such

investigation of assets and obligations of the parties and of the

value and amount thereof as each party has deemed sufficient

and necessary for his and her own purposes in negotiating this

Agreement.

[Pltff's Exh. A, Deft's Exh. A, pages 7-9]

At Article XI(a),(b) entitled "Support of the Children", the Agreement provides that plaintiff shall pay basic child support for the parties' three children of $29,500 per month for 149 months subject to a cost of living increase biennially. Plaintiff is further responsible for 100% of discretionary expenses and add-on expenses, including private school tuition for all three children, private college expenses, camp and summer programs, religion education expenses, Bar and Bat Mitzvah expenses, health insurance and unreimbursed medical expenses.

The child support modification provisions of the Agreement contain a waiver of the modification provisions under the amendment to DRL § 236B(7)(d) and (9)(b)(2) providing for review of child support based on the passage of three (3) years since the order was entered, modified, or adjusted, or a 15% change in either party's income since the order was entered, modified or adjusted. Instead, the Agreement provides:

"The parties waive this presumptive right of review in lieu of a COLA provision described above in paragraph (b) and child support modification language contained in paragraph (h) below. The parents are aware that despite this waiver, should there be a substantial change in circumstance, the courts may, at their discretion modify child support. (emphasis not added)

[Pltff's Exh. A, Deft's Exh. A, Art. XI (e), page 20] [*5]

Immediately following the above waiver, the Agreement states:

CHILD SUPPORT STANDARDS ACT

(f)The parents to this Agreement have been informed of the provisions of the Domestic Relations Law, § 240 (1-b)a statutory provision commonly known as the Child Support Standards Act ("CSSA") as well as the interpretation and consideration of the statute which it has been given by the Court of Appeals of the State of New York in the case of Cassano v. Cassano, 85 NY2d 649 (1995). The parents acknowledge they have been informed of the provisions of the statute and decision, understand them, and have had a full opportunity to discuss them with counsel. The parents further acknowledge that they are aware that the Child Support Standards Act provides a formula for calculating child support based upon twenty-nine percent (29%) of the parents' yearly combined income up to at least the new threshold amount effective January 1, 2012 of $136,000.00, or $37,000.00 for three (3) children, and potentially twenty-nine percent (29%) of the parents' yearly combined income over $136,000.00 to establish the basic child support obligation for three children and the non-custodial parent's pro rata share thereof. The parents understand that, in addition to the non-custodial parent's pro rata share of the basic child support obligation, he or she must also pay a pro rata share of the child's health care expenses and the child care expenses and may be directed to contribute to the child's present or future educational expenses and that health insurance coverage is included in basic child support.

(emphasis supplied)

[Pltff's Exh. A, Deft's Exh. A, Art. XI (f), pages 20-21]

Thereafter, the Agreement sets forth the calculation of child support as to the first

$136,000 of combined income and total combined income over $136,000 based upon the plaintiff's gross income of $1,200,000 reported on his most recent income tax return for 2010, or $1,175,978.40 after FICA / Medicare deductions pursuant to the CSSA. Defendant's gross income was $18,348.00, or $16,944.37 after FICA / Medicare deductions. The plaintiff's monthly basic child support obligation on the first $136,000 of combined income is stated as $3,286.67 and his monthly basic child support obligation, as he agreed to, is $28,466.67. [Agreement, Art. XI (f), pages 21-23].

At Article XI(f), within the same child support provisions, it states:

In full knowledge and understanding of the foregoing, the above child support calculation is presumptively correct, the Father agrees to pay to the Mother $29,500.00 per month for basic child support and shall be paid by the Father for a period of 149 months which child support payments shall be paid by Father to Mother on the 5th business day of each month for a period of 149 consecutive months including April 2012. The Father and Mother have agreed to deviate from [*6]the formulaic calculation using CSSA for the following reasons:

1. The physical and emotional health of the children and his/her special needs and aptitudes.

2. The standard of living the children would have enjoyed had the marriage or household not been dissolved.

3. A determination that the gross income of one parent is substantially less than that of the other.

4. The tax consequences to the parties.

5. The Father has substantial income from investments.

6. The Father believes his business will improve and the agreement provides for a reduction in support in the event that the father's business does not improve.

[Agreement, Art. XI (f), page 23 - 24]

While plaintiff agreed to use his 2010 income of $1,200,000 when he signed the Agreement on April 6, 2012, the parties' 2011 federal tax return, filed while on extension thereafter, declares "gross income from all sources" to be $1,893,409. [Deft.'s Exh. C]. Morever, on August 15, 2013, more than a year after the Agreement was signed, plaintiff filed a Statement of Net Worth in this Court that states his current income from partnership, royalties, and sale of assets is $1,515,000 per annum, with the 2012 federal tax return on extension. [Deft. Exh. C]

As referenced, supra, the parties waived the statutory provisions for child support modification and charted their own methodology in this regard.

At Article XI(h) entitled "Method of Modification of Child Support", the Agreement provides:

(h) The Father agrees to pay his monthly child support obligation as described in paragraph (a) above. However if as a result of a downturn in the Father's business and

— after the father has depleted his liquid assets down to a value of $500,000, not including retirement funds unless same were deposited within six months immediately preceding the modification; and

— the capital requirement in ***** is at or below the SEC minimum; and

— the Father has downsized his personal expenses (i.e. smaller apartment),

the parties agree to a downward modification in child support. [*7]

The Father and Mother shall first attempt to modify child support themselves. If they cannot, the Father and Mother shall return to mediation for a minimum of one (1) session to resolve the modification before seeking judicial intervention.

[Agreement, Art. XI, (h) at page 24]

At Article XX(a) entitled "Entire Understanding", the Agreement provides:

a. This Agreement contains the entire understanding of the parties who hereby acknowledge that there have been and are no representations, warranties, covenants or undertakings other than those expressly set forth above; that they have given due consideration to such provisions and that they clearly understand and assent to all the provisions here.

[Art. XX (a), at page 52]

Following the execution of the Agreement, and, as plaintiff alleges, "upon realization that the child support provisions of the Agreement were unsustainable, unfair and overreaching," [Pltff's Aff. ¶ 4], he sought to modify the Agreement regarding the child support provisions. With new counsel, and following further mediation that was unsuccessful, plaintiff filed a summons and verified complaint on May 22, 2013 for a divorce on grounds of irretrievable breakdown of the marriage for at least six months [DRL § 170(7)]. The defendant was served on May 24, 2013. Following a Preliminary Conference on July 23, 2013, plaintiff now moves to rescind the child support provisions of the agreement, or alternatively, to rescind the entire Agreement. Defendant cross-moves for an order declaring the Agreement valid and enforceable, or alternatively modifying the agreement to the extent necessary to effectuate the intent of the parties, for summary judgment granting a Judgment of Divorce, and for counsel fees of $50,000.

Parties' Contentions

The gravamen of plaintiff's challenge to the child support provisions of the Agreement are they are "overreaching, egregiously inequitable, manifestly unfair and unconscionable" and he was not adequately advised by the mediator, or competently represented by legal counsel regarding the Agreement. [Pltff's Aff. ¶25, ¶27, ¶36]. Specifically, plaintiff claims he was never advised that courts may "cap" income for child support purposes when it exceeds $136,000, and that it is "standard" for courts to cap income for child support purposes at an amount less than 100% of the combined parental income when it exceeds $136,000. [Pltff's Aff. ¶27]. He argues that a court "would almost invariably" have capped his income for child support purposes at an amount far less than 100% of his income, likely between a range of $250,000 to $400,000 [Pltff's Aff. ¶25].

Plaintiff seeks rescission of the child support provision of the Agreement, or alternatively, that the entire Agreement be rescinded.

It is undisputed that the parties did not exchange Statements of Net Worth and agreed to use their 2010 income information to make support calculations as no 2011 federal tax return had been prepared at the time of the negotiation and signing of the Agreement. The parties also agreed that irrespective of plaintiff's earned income for 2011, his imputed income would be $1.2 million in computing child support under the [*8]Child Support Standard Act (CSSA). This figure was based upon a draw from plaintiff's business, **** , an amount that plaintiff contends did not reflect his actual earned and investment income.

In opposition, defendant contends that plaintiff does not assert any allegations of fraud, duress, or other misconduct on her part, but rather only claims of being misled and misadvised by the mediator and his own attorney. Defendant claims that notwithstanding plaintiff's protestations, he drove the negotiations and was fully aware of the deal he was making. According to defendant, plaintiff was always focused on the "total nut" he was outlaying, not on specific characterizations of "child support", maintenance, or equitable distribution. As an example, an email from plaintiff's attorney, dated January 20, 2012, states, inter alia: " A' has not been looking at the numbers in terms of maintenance, business buyout and child support. Rather, he has been looking at the total nut he will be outlaying." [Deft's Exh. G] Defendant states in her affidavit that "[C]haracterizing a significant amount of the financial "nut" as child support rather than equitable distribution satisfied my concern that the payments would be tax free and provided a more palatable alternative to plaintiff in light of the demise of our intact family and marital relationship." [Deft's. Aff. ¶19].

Defendant argues the Agreement reflected three years of negotiating and mediating a global settlement with the rights, obligations and waivers of the parties being inextricably intertwined. For example, it is undisputed that in exchange for defendant's waiver of her equitable share of **** (plaintiff's business), plaintiff agreed to pay defendant additional maintenance of five years and three months, at $10,693.88 per month. [Agreement, Art. XIII(I)(c), page 36]. Defendant notes that plaintiff gained substantial benefits under the Agreement. It was signed in April, 2012, approximately 3 ½ years after the 2008 financial crisis and by then, plaintiff knew his actual income for 2010 and 2011.

Lastly, notwithstanding plaintiff's pleas of dire financial circumstances, plaintiff has not alleged that he has met the benchmarks for a reduction in support as set forth in Article XI(h) at page 24, supra. That is, defendant notes such financial circumstances were expressly addressed in the Agreement, including the provision "opting out" of the child support statute and the detailed provision providing for a downward modification if certain financial events occurred. Each party was represented by independent legal counsel, and defendant further points to plaintiff's e-mails that undercut his position of ignorance and unawareness of the provisions of the CSSA.

Analysis

New York law protects the rights of parties to enter into agreements relating to their marital relations. DRL 236(B)(3) ("An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action..."). Duly executed separation agreements are generally valid and enforceable. Van Kipnis v. Van Kipnis, 11 NY3d 573 (2008). Stipulations of settlement are favored by the courts and not lightly cast aside" Hallock v. State, 64 NY2d 224, 230 (1984).

It is well settled that a Separation Agreement or stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching or unconscionability [Kabir v. Kabir, 85 AD3d 127 (2d Dept 2011); [*9]Brennan-Duffy v. Duffy, 22 AD3d 699 (2d Dept 2005)], bearing in mind that an agreement is not unconscionable "merely because in retrospect, some of its provisions were improvident or one-sided.' Rauso v. Rauso, 73 AD3d 888 (2d Dept 2010); Schultz v. Schultz, 58 AD3d 616 (2d Dept 2009), quoting O'Lear v. O'Lear, 235 AD2d 466 (2d Dept 1997)." Furthermore, "a stipulation of settlement in a matrimonial action is a contract subject to principles of contract interpretation....Where the stipulation is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence," Dimond v. Dimond, 105 AD3d 891 (2d Dept 2013), quoting Perry v. Perry, 13 AD3d 508, 509 (2d Dept 2004).

In general, a postnuptial agreement "which is regular on its face will be recognized and enforced by the courts in much the same manner as an ordinary contract." Levine v. Levine, 56 NY2d 42, 47 (1982); Petracca v. Petracca, 101 AD3d 695 (2d Dept 2012); Cioffi-Petrakis v. Petrakis, 72 AD3d 868 (2d Dept 2010). However, "[a]greements between spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring the utmost of good faith," Christian v. Christian, 42 NY2d 63 (1977). When presented with legal challenges to marital agreements, the courts have recognized that 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). Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their differences..." Christian v. Christian, supra at 71; Cioffi v. Petrakis, supra.

Applying these legal principles, plaintiff has failed to establish a sufficient basis, on the facts or the law, to find the child support provisions of the Agreement are overreaching, inequitable, unfair, or unconscionable, or that plaintiff is entitled to relief from the Agreement on the basis that he was not adequately represented by legal counsel

Unconscionability, Inequity, and Overreaching

Plaintiff asserts he "unwittingly" entered into an agreement with child support obligations that are "overreaching, egregiously inequitable, manifestly unfair and unconscionable." However, plaintiff, a savvy businessman and financial expert, appears to have negotiated the very deal he obtained. His own e-mail communications support this fact. Moreover, there is no requirement that a court or parties "cap" combined parental income at any specific amount over the initial $136,000.

On June 27, 2011, plaintiff sent an e-mail to the mediator, defendant's attorney, and his attorney that describes in great detail his financial concerns and the past, current, and future profitability of **** (plaintiff's business). He proposed to pay defendant $20,000 per month in child support and $20,000 per month in maintenance or $40,000 per month for 11 years without changes. He stated that under his proposal, "I get short term relief and some time to earn money again." and further states, "The numbers work. No one will be crying for anyone if this is achieved." [Def's Exh. D, page 2].

On January 27, 2012, another e-mail from plaintiff to the mediator and both [*10]lawyers sheds additional light on plaintiff's thought processes during the negotiations and his depth of awareness and understanding that a court might order him to pay less child support. Plaintiff wrote, in pertinent part:

"Point is, I think (the mediator) and our lawyers and accountants should plug

in the figures that I would be asked by a court to pay in alimony and

child support based upon my earnings and then compare that to what

I have offered in most recent effort to explain our differences in

understanding and settle amicably...A little guess from me is that the

new number might be half or less of what I am offering to try to live up to..."

"I may fail, and not be able to earn enough to pay for the deal I am

willing to sign, but I know it is a better deal than the one you will get

if we push into litigation...and we know what the absolute worse part

of that will be.'

[Deft.'s Exh. E, page 3]

"An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense." Morad v. Morad, 27 AD3d 626, 627 (2d Dept 2006); Christian v. Christian, supra, 42 NY2d at 71; Cosh v. Cosh, 45 AD3d at 798, 799 (2d Dept 2007; see also, Dawes v. Dawes, 110 AD3d 1450 (4th Dept 2013). In other words, an unconscionable contract is one "which is so grossly unreasonable as to be unenforceable because of the absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." King v. Fox, 7 NY3d 181, 191 (2006); Barocas v. Barocas, 94 AD3d 551, 552 (1st Dept 2012). A reviewing court examining a challenge to a postnuptial agreement will view the agreement in its entirety and under the totality of circumstances. Kabir v. Kabir, supra; O'Malley v. O'Malley, 41 AD3d 449 (2d Dept 2007); Reiss v. Reiss, 21 AD3d 1073, 1074 (2d Dept 2005).

Similarly, a party attacking the validity of the agreement has the burden of coming forward with evidence showing fraud, which will not be presumed, and must have as its basis evidence of overreaching — the concealment of facts, misrepresentation or some other form of deception by the other party. Stawinski v. Stawinski, 43 AD3d 776 (1st Dept 2007); Matter of Sunshine, 51 AD2d 326 (1st Dept), aff'd 40 NY2d 875 (1976). The plaintiff has failed to submit proof to support his conclusory allegations in this regard.

Insofar as plaintiff's claim of unfairness, the party challenging the agreement "bears the very high burden of showing that it is manifestly unfair and that this unfairness was the result of overreaching on the part of the [other party]" Bronfman v. Bronfman, 229 AD2d 314, 315 (1st Dept 1996); Einhorn v. Einhorn, 24 Misc 3d1250(A) [*11](Supreme Ct., Kings County, 2009) (Sunshine, J.) Here, there is no evidence whatsoever that defendant overreached in the lengthy process of negotiations and execution of the Agreement.

The court finds and concludes that the evidence demonstrates the plaintiff, who is possessed of sophistication, expertise, and intellect in financial matters, was personally involved in all aspects of the extensive negotiations, that he personally proposed the deal that was ultimately accepted, repeatedly refined his own proposal, and signed the Agreement, and initialed each page, including the final page that stated he clearly understood and assented to the Agreement. As previously stated, throughout the negotiations and preparation of the Agreement, he was represented by legal counsel.

Inadequate Representation and Misadvise by Legal Counsel

Plaintiff's claims regarding the inadequacy of his legal representation, misadvise by the mediator, and his ignorance as to the provisions of the Child Support Standards Act and the "standard" application of the cap within the context of the CSSA are completely belied by the language in the Agreement, much of it quoted, supra. The court finds that the Agreement was negotiated over a lengthy period of time, was prepared by independent counsel, and reviewed by plaintiff's own counsel. At all times, plaintiff was assisted by his own counsel who actively participated in the negotiations, preparation, and execution of the Agreement. The court notes plaintiff has produced no affirmation from prior attorney or anyone else corroborating any of his allegations regarding her failure to properly advise him, or that she operated under a conflict of interest because the mediator recommended her.

In sum, the court declares the Agreement, dated April 6, 2012, to be valid and enforceable, and thereby rejects plaintiff's claims in their entirety that he was not properly advised of the child support provisions of the Agreement, that he failed to comprehend them, and entered unknowingly and unwittingly into the Agreement. The facts adduced are to the contrary.

Summary Judgment

Defendant seeks by cross-motion that the court grant her a Judgment of Divorce dissolving the marriage and incorporating and not merging therein the Agreement. By a Preliminary Conference Stipulation / Order, dated July 23, 2013, so ordered on July 30, 2013, the parties agreed that plaintiff would proceed on an uncontested basis to obtain a divorce on grounds of irretrievable breakdown of the marriage for a period of at least of six months [Deft.'s Exh. H].

CPLR 3212(b) states in pertinent part that a motion for summary judgment "shall be granted if, upon all of 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."

In Andre v Pomeroy, 35 NY2d 361, 364 (1974), the Court held that:

[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law . . . when there is no genuine [*12]issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.

It has often been said that issue finding, rather than issue determination, is the key to summary judgment, so that the papers in the motion should be scrutinized carefully in the light most favorable to the party opposing relief. Matter of Suffolk Co. Dept. Of Social Services v. James M., 83 NY2d 178 (1994); In re Cuttitto Family Trust, 10 AD3d 656 (2d Dept 2004); Judice v. Dingell, 272 AD2d 583 (2d Dept 2000).

On a motion for summary judgment, the movant must make a prima facie showing that there are no material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985); Andre v. Pomeroy, supra. Once the moving party has succeeded in such a demonstration, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that legally sufficient issues of fact exist which require a trial. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." Zuckerman v. City of New York, 49 NY2d 557, 562. (1980).

Applying these principles here, defendant has established her prima facie entitlement to judgment as a matter of law by presenting the Settlement Agreement and the Preliminary Conference Stipulation / Order signed by the parties and so ordered by the court. In opposition, plaintiff has failed to submit evidence in admissible form sufficient to raise a triable issue of fact.

Defendant's motion for summary judgment for a Judgment of Divorce dissolving the marriage and incorporating and not merging therein the Agreement is granted.

Counsel Fees

Defendant seeks an award of attorney's fees based upon the provision in the Agreement providing for an award of counsel fees if a party seeks unsuccessfully to rescind the Agreement.

Specifically, at Article VI(e) entitled "Mediation and Legal Representation", the Agreement provides:

"If either party by any action, proceeding, defense, counterclaim

or otherwise, seeks to vacate or set aside this Agreement or

declare any of its terms and conditions as invalid, or otherwise,

void or against public policy, by any reason including, but not

limited to fraud, duress, incompetence, overreaching or

unconscionability, the losing party shall reimburse the other party

and be liable for any and all such party's reasonable attorney's

fees and expenses provided and to the extent that such action,

proceeding, counterclaim or defense results in a decision,

judgment, decree or order dismissing or granting said claim..." [*13]

In support of her attorney's fees application, defendant has submitted a copy of the retainer agreement with The Kitson Law Firm, LLP whom she retained on or about June 3, 2013. [Deft.'s Exh I]. Her attorney, Patricia G. Kitson, Esq. has submitted an Affirmation, dated November 5, 2013, and attached a statement of fees from July 16, 2013 through October 30, 2013 for legal services rendered to defendant. The statement of fees totals $49,580.50 of which $43,338 was billed for defending against plaintiff's challenge to the Agreement and pursuing enforcement of the Agreement by a cross-motion. [Deft.'s Ech. J]. Subsequently, on November 19, 2013, the parties and counsel appeared in court on plaintiff's motion and defendant's cross-motion.

In opposition, plaintiff asserts that defendant should not be awarded counsel fees for his "justified application", and the $50,000 in attorney's fees that defendant seeks is excessive. Plaintiff's claim of excessiveness is unsupported by any reference to specific billable hours that are objectionable. He also contends defendant has greater liquid assets. Plaintiff's counsel has not provided her retainer agreement with plaintiff, or submitted billing records as to the amounts paid and still owing, if any in filing the instant application to assist the court in determining the extent and appropriateness of the work claimed to have been done. Further, the 2010 Amendment to DRL § 237 requires mutual disclosure in attorney's fees applications [L. 2010, c. 329 § 1, eff. October 12, 2010]

Merrick v. Merrick, 37 Misc 3d 1222(A) (Sup. Ct., Orange County 2012).

Taking into account all the facts and circumstances, including defendant's entitlement to an award of attorney's fees pursuant to Article VI(e) of the Agreement, the court awards $35,000 as attorney's fees to defendant to be paid by plaintiff within 45 days of the date of this decision and order.

Accordingly, it is

ORDERED that plaintiff's motion for an order directing that the child support provisions of the parties' Settlement Agreement, dated April 6, 2012, be rescinded and declared null and void, or in the alternative, the entire Settlement Agreement be rescinded and declared null and void is denied; and it is further

ORDERED that defendant's cross-motion for an order declaring the parties' Settlement Agreement to be valid and enforceable is granted; and it is further

ORDERED that defendant's cross-motion for summary judgment granting a Judgment of Divorce and incorporating and not merging the Settlement Agreement is granted; and it is further

ORDERED that defendant's cross-motion for attorney's fees in the amount of $50,000 is granted to the extent that defendant is awarded $35,000 as attorney's fees to be paid by plaintiff within 45 days of the date of this decision and order.

Plaintiff shall submit a proposed Judgment of Divorce and Findings of Fact and Conclusions of Law by February 28, 2014 based upon plaintiff's first cause of action pursuant to DRL § 170(7), with notice of settlement and proof of service. If the papers are not timely submitted, the parties and counsel shall appear on March 14, 2014 at 9:30 a.m.The foregoing constitutes the decision and order of the court.

Dated: White Plains, New York

January 16, 2014 [*14]

E N T E R,

Hon. Lawrence H. Ecker, J.S.C.