McMenemy v. McMenemy ( 2001 )

In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County (Baisley, J.), entered August 31, 2000, as, upon a decision of the same court dated June 7, 2000, granted that branch of the defendant wife’s motion which was for leave to amend her answer to include a counterclaim for reformation and rescission of the parties’ separation agreement, and, in effect, denied that branch of the plaintiffs cross motion which was to incorporate the terms of the separation agreement into the judgment of divorce, and directed the defendant to serve the counterclaim on the plaintiff.

Ordered that the order and judgment is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, the defendant’s motion is denied, that branch of the plaintiff’s cross motion which was to incorporate the parties’ separation agreement into the divorce judgment is granted, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate amended judgment which incorporates the terms of the parties’ separation agreement.

The Supreme Court improvidently exercised its discretion in granting the defendant leave to amend her answer on the date of trial to include a counterclaim to rescind a separation agreement entered into between the parties five years earlier, since she did not establish that the agreement was unconscionable or the result of fraud (see, Collison-Harrington v Harrington, 279 AD2d 444; Anthony v Anthony, 199 AD2d 353; Torsiello v Torsiello, 188 AD2d 523, 524; Capone v Capone, 148 AD2d 565; Patti v Patti, 146 AD2d 757). O’Brien, J. P., McGinity, H. Miller and Adams, JJ., concur.