UNDERBERG & KESSLER LLP, ROCHESTER (RONALD G. HULL OF COUNSEL), FOR PLAINTIFF–APPELLANT.

SUSAN GRAY JONES, CANANDAIGUA, FOR DEFENDANT–RESPONDENT.

PRESENT: SMITH, J.P., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

Memorandum:

The parties were married in 1978 and entered into a separation agreement on October 30, 2013 and a modification agreement on July 7, 2014. In October 2015, plaintiff husband commenced this action seeking a divorce and to have the agreements set aside. Plaintiff also filed a motion seeking that same relief. In appeal No. 2, plaintiff appeals from an order denying his motion and, in appeal No. 1, he appeals from a judgment of divorce signed on the same date that incorporated the agreements. We note at the outset that appeal No. 2 must be dismissed inasmuch as the order in that appeal is subsumed in the final judgment of divorce (see Rooney v. Rooney [appeal No. 3], 92 A.D.3d 1294, 1295, 938 N.Y.S.2d 724 [4th Dept. 2012]lv. denied 19 N.Y.3d 810, 951 N.Y.S.2d 468, 975 N.E.2d 914 [2012] ; see also Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988, 988, 529 N.Y.S.2d 658 [4th Dept. 1988] ).

We agree with plaintiff that the agreements are unfair and unconscionable and should be set aside. Separation agreements are subject to closer judicial scrutiny than other contracts because of the fiduciary relationship between spouses (see Christian v. Christian, 42 N.Y.2d 63, 72, 396 N.Y.S.2d 817, 365 N.E.2d 849 [1977] ; Gibson v. Gibson, 284 A.D.2d 908, 909, 726 N.Y.S.2d 195 [4th Dept. 2001] ). A separation agreement should be set aside as unconscionable where it is "such as no person in his or her senses and not under delusion would make on the one hand, and as no honest and fair person would accept on the other ..., the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense" ( Christian, 42 N.Y.2d at 71, 396 N.Y.S.2d 817, 365 N.E.2d 849 [internal quotation marks and brackets omitted]; see Dawes v. Dawes, 110 A.D.3d 1450, 1451, 973 N.Y.S.2d 504 [4th Dept. 2013] ; Skotnicki v. Skotnicki, 237 A.D.2d 974, 975, 654 N.Y.S.2d 904 [4th Dept. 1997] ). We note that the unconscionability or inequality of a separation agreement may be the result of overreaching by one party to the detriment of another (see Tchorzewski v. Tchorzewski, 278 A.D.2d 869, 870, 717 N.Y.S.2d 436 [4th Dept. 2000] ).

Here, at the time the parties entered into the agreements, defendant wife was represented by counsel but plaintiff was not, which, while not dispositive, is a significant factor for us to consider (see Gibson, 284 A.D.2d at 909, 726 N.Y.S.2d 195 ; Tchorzewski, 278 A.D.2d at 870, 717 N.Y.S.2d 436 ; Skotnicki, 237 A.D.2d at 975, 654 N.Y.S.2d 904 ). Another factor to consider is that the agreements did not make a full disclosure of the finances of the parties (see Tchorzewski, 278 A.D.2d at 870–871, 717 N.Y.S.2d 436 ). In particular, defendant, who had a master's degree in business administration and was a professor at a SUNY college, would receive two pensions upon retirement, neither of which was valued. The separation agreement did not provide for any maintenance for plaintiff despite the gross disparity in incomes and the length of the marriage and, while the modification agreement provided maintenance for plaintiff, it also required plaintiff to transfer his interest in the marital residence to defendant. In opposition to the motion, defendant averred that the parties "wanted an agreement whereby [plaintiff] would keep his income and retirement assets and I would keep mine." As shown by their statements of net worth, which were prepared after the agreements were executed, plaintiff's assets totaled approximately $77,000 whereas defendant's assets, which included the marital residence, totaled approximately $740,000. Based on our consideration of all the factors, we conclude that the agreements here are unconscionable and were the product of overreaching by defendant and thus should be set aside (see Dawes, 110 A.D.3d at 1451, 973 N.Y.S.2d 504 ; Gibson, 284 A.D.2d at 909, 726 N.Y.S.2d 195 ; Tchorzewski, 278 A.D.2d at 871, 717 N.Y.S.2d 436 ). We therefore reverse the judgment in appeal No. 1 insofar as appealed from, grant the motion, vacate the second and third decretal paragraphs, and we remit the matter to Supreme Court to determine the issues of equitable distribution and maintenance.

It is hereby ORDERED that the judgment insofar as appealed from is unanimously reversed on the law without costs, the motion is granted, the second and third decretal paragraphs are vacated, and the matter is remitted to Supreme Court, Monroe County, for further proceedings.