Opinion
1333 CA 15-00857.
12-23-2015
Daniel J. VERNA, Plaintiff–Appellant, v. Bernadette VERNA, Defendant–Respondent.
Gustave J. Detraglia, Jr., Utica, for Plaintiff–Appellant. Karonne Jarrett Watson, Schenectady, for Defendant–Respondent.
Gustave J. Detraglia, Jr., Utica, for Plaintiff–Appellant.
Karonne Jarrett Watson, Schenectady, for Defendant–Respondent.
Opinion
MEMORANDUM:
On appeal from an order that, inter alia, denied his motion seeking to modify a judgment of divorce, plaintiff contends that the parties' stipulation of settlement was unconscionable. We reject that contention. We note at the outset that, “[i]nasmuch as the stipulation was incorporated but not merged into the judgment of divorce, [plaintiff] cannot challenge the stipulation by way of motion but, rather, must do so by commencement of a plenary action” (Marshall v. Marshall, 124 A.D.3d 1314, 1317, 1 N.Y.S.3d 622; see Barany v. Barany, 71 A.D.3d 613, 614, 898 N.Y.S.2d 146; see generally Bryant v. Carty, 118 A.D.3d 1459, 1459, 989 N.Y.S.2d 200). Nevertheless, “[b]ecause the determination in this case was made after a full hearing tantamount to a plenary trial, we address the merits in the interest of judicial economy” (Gaines v. Gaines, 188 A.D.2d 1048, 1048, 592 N.Y.S.2d 204; see Dunham v. Dunham, 214 A.D.2d 961, 961–962, 626 N.Y.S.2d 932). On the merits, we conclude that, contrary to plaintiff's contention, the agreement is not unconscionable insofar as it requires plaintiff to obtain a $350,000 life insurance policy and to name defendant as the beneficiary of the policy. Although the insurance premiums for this policy may have been higher than plaintiff anticipated, the parties' agreement is not “one 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” (Christian v. Christian, 42 N.Y.2d 63, 71, 396 N.Y.S.2d 817, 365 N.E.2d 849 [internal quotation marks omitted]; see Colello v. Colello, 9 A.D.3d 855, 859, 780 N.Y.S.2d 450; Skotnicki v. Skotnicki, 237 A.D.2d 974, 975, 654 N.Y.S.2d 904).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.