In this action, Plaintiff S.S. ("Plaintiff") seeks to set aside the Separation and Settlement Agreement ("SSA") entered into on November 7, 2024, between Plaintiff and his now ex-wife, Defendant E.S. ("Defendant"), alleging that the SSA was unconscionable and the product of coercion and duress. Defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(7), and to cancel the notice of pendency filed by Plaintiff with respect to the former marital residence located at XXXX Bellwood Drive in the Town of Geneseo. For the reasons stated below, Defendant's motion to dismiss is granted and the Notice of Pendency is cancelled.

The parties were formerly married and were divorced pursuant to a Judgment of Divorce entered on November 25, 2024 (NYSCEF Doc. No. 6). The SSA was incorporated, but not merged, into the parties' final Judgment of Divorce (id.).

Among other terms, the SSA provided that Defendant would continue to reside at the former marital residence located at XXXX Bellwood Drive in Geneseo until June 2025. The SSA further provided Plaintiff with the right to buy out Defendant's interest in the property prior to March 21, 2025. If Plaintiff did not exercise this right, the property was to be listed for sale. (Id., SSA Article 27.) Plaintiff did not timely exercise his right to buy out Defendant, and Defendant subsequently maintained that Plaintiff failed to cooperate in listing the property for sale. This resulted in post-judgment proceedings in the matrimonial action, with the Court (Van Allen, A.J.S.C.) issuing an Order dated May 22, 2025, appointing Defendant as the receiver of [*2]the property and permitting her to sell the property. (Livingston Co. Sup. Ct. Index No. 000720-2022, Doc. No. 221.)

On July 16, 2025, Plaintiff filed the initial Summons and Complaint in this matter, seeking to set aside the SSA (NYSCEF Doc. No. 1). At the same time, Plaintiff filed a Notice of Pendency with respect to the Bellwood Drive property (NYSCEF Doc. No. 2). By Order to Show Cause filed on August 1, 2025, Defendant moved to dismiss this action pursuant to CPLR 3211(a)(1) and (a)(7), to cancel the Notice of Pendency, and for attorneys' fees and sanctions (Motion #1, NYSCEF Doc. Nos. 3-14). The Court (Van Allen, A.J.S.C.) signed the Order to Show Cause, which, among other relief, temporarily cancelled the Notice of Pendency pending the final determination of this motion (NYSCEF Doc. No. 17).

Plaintiff then filed a motion to recuse (Motion #2, NYSCEF Doc. Nos. 19-24, 26-28), which Defendant opposed (NYSCEF Doc. No. 32). Because this matter was subsequently reassigned to the undersigned, the motion to recuse will be denied as moot.

During the pendency of Defendant's motion to dismiss, Plaintiff filed an Amended Complaint as of right (NYSCEF Doc. No. 33), and also filed papers in opposition to Defendant's motion to dismiss (NYSCEF Doc. Nos. 29-31, 36-37). (See Perez v. Wegman Companies, Inc., 162 AD2d 959, 959 [4th Dept. 1990] ["As long as defendant's motion to dismiss was pending, plaintiff could amend her complaint as of right pursuant to CPLR 3025(a) and 3211(f)]."). Defendant's motion to dismiss is therefore properly considered as directed against the Amended Complaint (D'Amico v. Corr. Med. Care, Inc., 120 AD3d 956, 957 [4th Dept. 2014]). Defendant submitted reply papers in further support of her motion (NYSCEF Doc. No. 35).

The Court held oral argument on the motion on August 21, 2025, with both parties appearing through counsel.

A. Motion to Dismiss Standard

On a motion to dismiss pursuant to CPLR 3211, the Court is to afford a liberal construction to the operative pleading, accept the facts alleged therein as true, accord the non-movant the benefit of every possible favorable inference, and determine only whether the facts alleged fit within a cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). In addition to the operative pleading, the Court may consider affidavits and other evidentiary material to establish whether Plaintiff has a cause of action (Gerrish v. State Univ. of New York at Buffalo, 129 AD3d 1611, 1612 [4th Dept. 2015]). "In evaluating whether a complaint should be dismissed pursuant to CPLR 3211(a)(7) in a case where the court has considered evidentiary material in support of or in opposition to the motion, 'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one'" (Sanders v. Sanders, 234 AD3d 1292, 1293-94 [4th Dept. 2025] [quoting Leon, 84 NY2d at 88]). However, "[i]t is well settled that bare legal conclusions and factual claims [that] are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action" (Olszewski v. Waters of Orchard Park, 303 AD2d 995, 995 [4th Dept. 2003]).

A motion pursuant to CPLR 3211(a)(1) asserting that a claim or action is barred by documentary evidence may be granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v. Mut. Life Ins. Co. of New York, 98 NY2d 314, 326 [2002]). Contracts and judicial records are among the types of documentary evidence that may be considered by the Court (Rider v. [*3]Rainbow Mobile Home Park, LLP, 192 AD3d 1561, 1563 [4th Dept. 2021]).

B. Standard for Setting Aside a Marital Settlement Agreement

New York has a "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements" (Matter of Greiff, 92 NY2d 341, 344 [1998]). Thus, "there is a heavy presumption that a deliberately prepared and executed written instrument manifest[s] the true intention of the parties and a correspondingly high order of evidence is required to overcome that presumption" (Chimart Assocs. v. Paul, 66 NY2d 570, 574 [1986] [internal citations omitted]).

These same principles apply to marital settlement agreements. "It is well settled that 'marital settlement agreements are judicially favored and are not to be easily set aside'" (Van Ostrand v. Latham, 222 AD3d 1382, 1383 [4th Dept. 2023] [quoting Simkin v. Blank, 19 NY3d 46, 52 [2012]]). "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" (id. [quoting Johnson v. Ranger, 216 AD3d 925, 925 [2d Dept. 2023]]). However, "[s]eparation agreements are subject to closer judicial scrutiny than other contracts because of the fiduciary relationship between spouses" (Tuzzolino v. Tuzzolino, 156 AD3d 1402, 1403 [4th Dept. 2017]).

In seeking to set aside the SSA, the Amended Complaint first alleges that the SSA is unconscionable. The allegations focus on the provisions of the SSA related to spousal maintenance (NYSCEF Doc. No. 33, Am. Compl. ¶¶ 14-20), the disposition of the former marital residence (id. ¶¶ 21-31), the disposition of Plaintiff's personal property (id. ¶¶ 32-34), and the distribution of pension and retirement accounts (id. ¶¶ 35-45). Because Plaintiff has failed to sufficiently plead that these issues, either individually or collectively, render the SSA unconscionable, and because the SSA itself conclusively demonstrates that it is not unconscionable, this claim must be dismissed pursuant to CPLR 3211(a)(7) and (a)(1).

A separation agreement may be set aside if it is determined to be unconscionable (Elliott v. Elliott, 235 AD3d 1283, 1284-85 [4th Dept. 2025]). "An agreement is unconscionable if it 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" (Campbell v. Campbell, 208 AD3d 1050, 1052 [4th Dept. 2022]).

Because of the fiduciary relationship between spouses, agreements between them in the context of divorce proceedings "are closely scrutinized by the courts, and such agreements are more readily set aside in equity under circumstances that would be insufficient to nullify an ordinary contract" (Levine v. Levine, 56 NY2d 42, 47 [1982]). However, "conclusory allegations that an agreement was unfair are insufficient, and an agreement will not be found unconscionable merely because, in retrospect, it might have been improvident or one-sided or because one spouse gave away more than that spouse might legally have been compelled to give" (Tiedemann v. Salerno, 238 AD3d 1496, 1499 [4th Dept. 2025] [internal citations & alterations omitted]).

As to spousal maintenance, the SSA clearly sets out the basis for the calculation of Plaintiff's maintenance obligation (NYSCEF Doc. No. 6, SSA Article 25), which Plaintiff does not allege is incorrect (see NYSCEF Doc. No. 33, Am. Compl. ¶¶ 14-20). Instead, Plaintiff takes issue with the inclusion of annual lump sum maintenance payments in addition to monthly [*4]payments (see id.). However, the lump sum payments are accounted for by reducing monthly payments owed at the end of Plaintiff's maintenance obligation (see NYSCEF Doc. No. 6, SSA Article 25). Plaintiff's argument that the lump sum maintenance payments should have been subtracted from his income has no basis in law. Moreover, Plaintiff fails to acknowledge other maintenance provisions of the SSA, including that Plaintiff was credited with the value of his share of Defendant's IRA and certain credit card debt, that the term for maintenance was the average of the guideline duration for a 22-year marriage, and that Defendant agreed to New York's income cap of $228,000 and did not seek an upward adjustment (see id.).

Plaintiff also complains that, in addition to maintenance, he is obligated under the SSA to make mortgage and tax escrow payments on the marital residence, which he argues effectively increase his maintenance obligation (NYSCEF Doc. No. 33, Am. Compl. ¶ 20). This argument fails to recognize that Plaintiff's child support obligation constitutes a downward deviation from his presumptive obligation under the Child Support Standards Act, the stated basis for which is Plaintiff's obligation to make mortgage and tax escrow payments (NYSCEF Doc. No. 6, SSA Article 22). Additionally, upon a sale of the marital residence, Plaintiff is entitled to receive an upward adjustment of his share equal to the principal of these mortgage payments (NYSCEF Doc. No. 6, SSA Article 27).

Plaintiff also objects to the terms of the SSA with respect to the disposition of the former marital residence located at XXXX Bellwood Drive in Geneseo (NYSCEF Doc. No. 33, Am. Compl. ¶¶ 21-31). The SSA provides that Defendant could continue living in the home until June 2025, with Plaintiff paying the mortgage and taxes and Defendant paying utilities. The SSA further provided Plaintiff with the right to buy out Defendant's interest in the home for an agreed upon amount reflecting each party's equity. (NYSCEF Doc. No. 6, SSA Article 27.) Nothing about this arrangement is unconscionable.

Plaintiff's allegations that he was not given credit for having acted as general contractor in building the residence or that the down payment came from a trust of which he is beneficiary (NYSCEF Doc. No. 33, Am. Compl. ¶¶ 24-27) do not "shock the conscience" when the parties purchased the home together and lived there as a married couple with their minor children. The same conclusion applies to Plaintiff's allegation that he did not receive financial credit in the SSA for physical improvements that he made to the marital residence (id. ¶¶ 28-29), which served to benefit himself and his family, including his minor children.

Next, Plaintiff alleges that the SSA's provision for the disposition of personal property renders it unconscionable (NYSCEF Doc. No. 33, Am. Compl. ¶¶ 32-34). He pleads no facts as to any specific item of property (see id.). The SSA provides that "[t]he parties shall divide their personal property to their mutual satisfaction" and, absent agreement, "they shall engage a mediator through the Center for Resolution and Justice or another mutually agreed upon mediator to render a binding decision" (NYSCEF Doc. No. 6, SSA Article 32). This standard language is far from unconscionable. Plaintiff's primary concern appears to be that certain unspecified items of his personal property may have been sold without notice (NYSCEF Doc. No. 33, Am. Compl. ¶ 34), but that concerns the enforcement of the SSA, and has no bearing on whether or not the SSA is unconscionable.

Finally, Plaintiff asserts that the distribution of the parties' respective pension and retirement accounts is also unconscionable (id. ¶¶ 35-45). Plaintiff's allegations concerning discovery during the matrimonial proceeding (id. ¶¶ 36-40) address the process leading up to the signing of the SSA and not whether the SSA itself is unconscionable. The terms of the SSA [*5]provide mutual waivers under which Defendant waived any interest in Plaintiff's two TD Ameritrade Accounts, valued at $218,538, while Plaintiff waived any interest in Defendant's New York State pension (NYSCEF Doc. No. 6, SSA Article 34). The fact that the value of Defendant's pension is not set forth in the SSA does not, in and of itself, support a claim of unconscionability (see Elliott, 235 AD3d at 1285-86).

The bar to establish unconscionability is high. This is for good reason. Parties who enter into agreements that settle disputes, including marital settlement agreements, have a reasonable expectation of finality with respect to the dispute (see Van Ostrand, 222 AD3d at 1383). Undoing the negotiated terms of an agreement — particularly one in which the parties were both represented by counsel — requires circumstances that truly do "shock the conscience and confound the judgment of any person of common sense" (Campbell, 208 AD3d at 1052). There are no such circumstances here, and Plaintiff cannot maintain a claim of unconscionability.

Plaintiff's Amended Complaint next alleges that the SSA must be set aside because it was the product of coercion from his counsel and the Court, and that he therefore signed the SSA under duress (NYSCEF Doc. No. 33, Am. Compl. ¶¶ 46-61). Because Plaintiff has failed to allege facts adequate to plead duress, and because the transcript of the relevant proceedings demonstrates that there was no duress as to the central aspect of Plaintiff's claim, this branch of Defendant's motion to dismiss must also be granted under CPLR 3211(a)(7) and (a)(1).

"[A]n agreement 'is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of [that party's] free will'" (Amoia v. Amoia, 222 AD3d 1386, 1389 [4th Dept. 2023], quoting Austin Instrument, Inc. v. Loral Corp., 29 NY2d 124, 130 [1971]). "[T]he aggrieved party must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing" (Campbell, 208 AD3d at 1051).

Here, Plaintiff's allegations of duress are based upon his claim that neither of the two attorneys who represented him at different stages of the divorce proceeding provided effective counsel or listened to his wishes (NYSCEF Doc. No. 33, Am. Compl. ¶¶ 46-56, 59-61), and that the Judge overseeing his matrimonial action stated he would direct the sale of the marital residence prior to trial, encouraged him to listen to his attorney, and encouraged Plaintiff's attorney to submit a settlement proposal (id. ¶¶ 57-58, 61).

More specifically, Plaintiff alleges that his attorneys in the divorce proceeding did not file an answer or move against the complaint for divorce, did not explain his rights, offered incorrect legal advice, and responded to his inquiries by threatening to quit the case and reminding him how much their services cost (id. ¶¶ 46-48). Plaintiff alleges that his first attorney failed to respond to a motion concerning household expenses and interim legal fees, resulting in his having to pay those fees, without being aware of Defendant's earning potential (id. ¶¶ 49-52). Multiple discovery motions filed by Defendant's attorney increased the award of attorneys' fees owed by Plaintiff (id. ¶¶ 53-55). Ultimately, Plaintiff alleges that his attorney pressured him into signing the SSA, even though Plaintiff wanted a trial (id. ¶ 56). Plaintiff alleges that his counsel did not object to the Court directing the marital residence be listed for sale prior to the judgment of divorce, failed to advise the Court that Plaintiff wanted a trial, and told Plaintiff that his only chance to ultimately retain ownership of the marital residence was to sign the SSA (id. ¶¶ 59-60).

As to the Court, Plaintiff alleges that during a court appearance the Judge overseeing the [*6]matrimonial action stated that he would order the sale of the marital property before judgment, informed Plaintiff that his attorney "does a lot of this work," "is very experienced," and stated "you should listen to him and take his advice . . . but you have got to listen to him" (id. ¶ 57). The court further stated that a settlement proposal submitted by Defendant's wife was "not unconscionable" and urged Plaintiff's attorney to file a settlement proposal (id. ¶ 58).

Simply put, Plaintiff's allegations fall short of the high bar for making out a claim for duress. Plaintiff's allegations concerning his attorneys alleged inadequate performance with regard to discovery and interim payments and fees have little bearing on the parties' ultimate execution of the SSA. His attorneys allegedly pressuring him to settle the matrimonial action does not constitute a wrongful threat and was not sufficient to preclude the exercise of his free will (see Amoia, 222 AD3d at 1389). Similarly, the matrimonial Court's commonplace statements encouraging Plaintiff to listen to his attorney fall far short of duress.

The crux of Plaintiff's claim of duress focuses on the Court's statement regarding the sale of the marital residence prior to trial, and his counsel's alleged failure to push back on that statement (NYSCEF Doc. No. 33, Am. Compl. ¶¶ 57-61). But the transcript of proceedings filed by Plaintiff shows that Plaintiff's attorney did push back, requesting that the status of the house "not be resolved until the resolution of the case" (NYSECF Doc. No. 24, 5:12-15). Further, the Court said only "I'm inclined to order the sale of the house now," noting "I will hold off on signing an order for two weeks" (id. 6:12-16), and going on to state "I'm directing that a proposed disposition be filed within two weeks. And I'm going to hold off for two weeks on signing an order granting the sale of the house. And I'm going to get a court appearance in approximately two weeks." (Id. 7:6-10.) The statements of the Court and counsel are wholly insufficient to support Plaintiff's claim of duress. If Plaintiff disagreed with his counsel's recommendations, he could have sought new counsel. If Plaintiff disagreed with an order of the Court, he could have sought relief from that order.^[FN1] The facts here do not constitute threats sufficient to deprive Plaintiff of his free will and are insufficient to make out a claim for duress.

In her moving papers (NYSCEF Doc. No. 3), Defendant also requests that the Notice of Pendency filed by Plaintiff with respect to the former marital residence located at XXXX Bellwood Drive in Geneseo be cancelled. With the Court having granted the motion dismissing the Amended Complaint in its entirety, there is no longer any basis for the Notice with respect to the property, and accordingly the motion to cancel the Notice of Pendency is granted (see Divito v. Meegan, 156 AD3d 1408, 1410 (4th Dept. 2017); see also CPLR 6514(a)).

Defendant's motion seeks both attorneys' fees pursuant to Article 17 of the SSA as well as monetary sanctions against both Plaintiff and Plaintiff's counsel pursuant to 22 NYCRR § 130-1.1 (NYSCEF Doc. No. 3). The Court reserves decision as to this branch of Defendant's motion. Defendant may submit an application for fees and sanctions, complete with supporting documentation of fees and costs, within thirty days of the date of this Decision and Order.

For all the reasons stated above, and based upon the papers submitted and the oral [*7]argument held on August 21, 2025, and upon due deliberation it is hereby

ORDERED, that Defendant's Motion to Dismiss (Motion #1) is GRANTED, and the Amended Complaint is DISMISSED in its entirety; and it is further

ORDERED, that the Notice of Pendency with respect to XXXX Bellwood Drive in the Town of Geneseo (NYSCEF Doc. No. 2) is CANCELLED; and it is further

ORDERED, that Plaintiff's motion to recuse the Judge previously assigned to this matter (Motion #2) is DENIED as moot; and it is further

ORDERED, that the Court reserves decision as to Defendant's request for an award of attorneys' fees and monetary sanctions and directs that Defendant may file an application for fees and sanctions with supporting documentation within thirty days of the date of this Decision and Order.

This constitutes the Decision and Order of the Court.