Practice point: The Appellate Division affirmed the motion court's refusal to set aside the agreement, but on different grounds. The defendant established that the parties' agreement, which is fair on its face, was not the product of fraud, duress, overreaching, or unconscionability. The plaintiff was represented by counsel of her choosing during the negotiation of the agreement. Moreover, the agreement itself recites that the plaintiff had considered all of the facts and circumstances likely to influence her judgment, and that she entered into the agreement freely, voluntarily, and with full knowledge of its consequences. She was provided with meaningful bargained-for benefits. There is no evidence that the defendant attempted to conceal or misrepresent the nature or extent of his assets. As the plaintiff entered into the agreement with the assistance and advice of her own attorney, she may not now complain that her interests were not adequately safeguarded.
Student note: An agreement will not be set aside merely because, in hindsight, some of its provisions are improvident or even one-sided.
Case: Barnes-Levitan v. Levitan, NY Slip Op 06768 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: A client's dissatisfaction with a lawyer's strategic choice.
