Leighton v. Leighton , 847 N.Y.S.2d 64 ( 2007 )

Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered April 23, 2007, which denied plaintiff husband’s motion to dismiss all of defendant wife’s counterclaims, and granted defendant summary judgment setting aside as invalid, the parties’ 1992 postnuptial amendment to their 1986 prenuptial agreement, affirmed, without costs.

The 1992 postnuptial agreement was invalid due to the absence of a contemporaneous acknowledgment of plaintiff’s signature (see D’Elia v D’Elia, 14 AD3d 477 [2005]; Anonymous v Anonymous, 253 AD2d 696 [1998], lv dismissed 93 NY2d 888 [1999]). We have considered plaintiff’s claim concerning the applicability of the doctrines of equitable estoppel, laches, waiver and ratification, and find it without merit (see Smith v Smith, 263 AD2d 628, 630 [1999], lv dismissed 94 NY2d 797 [1999]; Haberman v Haberman, 216 AD2d 525, 527 [1995]; Messina v Messina, 143 AD2d 735 [1988]).

Defendant claims that the 1986 prenuptial agreement should be set aside on the grounds, inter alia, that she did not understand it and was not given the opportunity to consult’ counsel before signing it. She also claims the agreement was the result of coercion and overreaching for a number of reasons, including plaintiffs threats to cancel the wedding, her lack of understanding of legal terminology, and the fact that it was presented to her just hours before the wedding. Plaintiff disputes these allegations and once again raises defenses of estoppel, laches, ratification and waiver.

The IAS court found that defendant “raised genuine issues of fact concerning the fairness of the circumstances under which she signed the 1986 Prenuptial Agreement” and denied summary judgment to both parties.

Summary judgment is a “drastic remedy” that should only be employed where no doubt exists as to the absence of triable issues. The key to such procedure is issue-finding, rather than issue-determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Notwithstanding the language of the agreement, defendant has raised credible questions regarding its execution. Therefore, the IAS court properly found that neither party was entitled to summary judgment “at this stage of the action.” Concur—Lippman, PJ., Mazzarelli and Sweeny, JJ.