Rosenheck v. Rosenheck , 415 N.Y.S.2d 705 ( 1979 )

In an action, inter alia, for arrears allegedly due under a separation agreement, the parties cross-appeal from a judgment of the Supreme Court, Nassau County, entered September 21, 1978 (as resettled by an order of the same court, dated January 9, 1979) which, after a hearing, inter alia, (1) set aside the separation agreement on the grounds of overreaching and unconscionability, and (2) dismissed the plaintiff wife’s cause of action for arrears due under the agreement. Judgment, as resettled, affirmed, with costs to the defendant. The record establishes by clear and convincing evidence the propriety of the trial court’s conclusion that the separation agreement in issue was unconscionable, and the product of overreaching and a breach of fiduciary duties by the plaintiff wife (see Christian v Christian, 42 NY2d 63; Stern v Stern, 63 AD2d 700). The fact that the separation agreement was subsequently incorporated into a foreign divorce decree is no bar to the Supreme Court setting it aside (see Perlmutter v Perlmutter, 65 AD2d 601). Finally, we also agree with the trial court that the award of alimony and exclusive possession of the marital residence was proper under the circumstances (cf. Matter of Seitz v Drogheo, 21 NY2d 181). Damiani, J. P., Titone, Hargett and Mangano, JJ., concur.