Opinion
2014-09-23
Erika KLAUER, Plaintiff–Respondent, v. Asa ABELIOVICH, Defendant–Appellant.
Grant + Applebaum, P.C., New York (Patricia Ann Grant of counsel), for appellant. Cohen Clair Lans Greifer & Thorpe LLP, New York (Bernard E. Clair of counsel), for respondent.
Grant + Applebaum, P.C., New York (Patricia Ann Grant of counsel), for appellant. Cohen Clair Lans Greifer & Thorpe LLP, New York (Bernard E. Clair of counsel), for respondent.
Jo Ann Douglas, New York, attorney for the child.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered October 15, 2013, which, to the extent appealed from as limited by the briefs, denied defendant's motion to vacate the July 1, 2013 on-the-record custody agreement, unanimously affirmed, without costs. Appeal from so-ordered transcript of the custody agreement, same court and Justice, entered on or about September 24, 2013, unanimously dismissed, without costs.
Supreme Court properly denied defendant's motion to set aside the open-court custody agreement, as there was no showing of fraud, overreaching, mistake, or duress ( see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ). The parties were represented by able and experienced counsel, had been negotiating custody for some time, and spent an entire day resolving the agreement. Defendant was actively involved in the negotiations and many of his requested additions and modifications were incorporated into the agreement. Further, Supreme Court conducted a proper allocution of defendant and properly determined that he voluntarily and knowingly accepted the terms of the stipulation ( see Matter of Strang v. Rathbone, 108 A.D.3d 565, 566, 968 N.Y.S.2d 572 [2d Dept.2013] ). Defendant's contentions that he felt “forced into settling” and pressured by his attorneys are insufficient to establish mistake or duress so as to warrant setting aside the stipulation ( id.).
Defendant did not demonstrate any change in circumstances since the time of the stipulation that would warrant the modification he seeks ( see Matter of Iris R. v. Jose R., 74 A.D.3d 457, 902 N.Y.S.2d 519 [1st Dept.2010] ). Nor is there any basis for finding that the agreement is against the child's best interests ( see generally Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765 [1982] ). The agreement ensures regular parental access, equal vacation and holiday time, requires plaintiff to consult defendant on all major decisions, and gives defendant a say in medical decisions and in some extracurricular activities. The forensic report was not in evidence and, in any event, is not binding on the court ( see Matter of John A. v. Bridget M., 16 A.D.3d 324, 332, 791 N.Y.S.2d 421 [1st Dept.2005], lv. denied 5 N.Y.3d 710, 804 N.Y.S.2d 34, 837 N.E.2d 733 [2005] ). Accordingly, defendant was not entitled to a hearing on custody ( see Matter of Patricia C. v. Bruce L., 46 A.D.3d 399, 848 N.Y.S.2d 102 [1st Dept.2007] ). FRIEDMAN, J.P., ACOSTA, SAXE, GISCHE, KAPNICK, JJ., concur.