Santini v. Robinson , 760 N.Y.S.2d 333 ( 2003 )

—In an action to set aside a separation agreement, the plaintiff husband appeals from an order of the Supreme Court, Nassau County (Woodard, J.), dated July 3, 2002, which granted the defendant wife’s motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff husband contends that the separation agreement that he executed without the benefit of counsel is unconscionable. It is well settled that a separation agreement is closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud or overreaching in its execution (see Christian v Christian, 42 NY2d 63 [1977]; Berkman v Berkman, 287 AD2d 426 [2001]; Cardinal v Cardinal, 275 AD2d 756 [2000]). The grant of the defendant’s motion for summary judgment was premature since there are issues of fact as to whether the separation agreement was unconscionable (see Cardinal v Cardinal, supra).

Moreover, there is a question of fact as to whether the plaintiff husband ratified the separation agreement. Accordingly, the Supreme Court erred in concluding that the plaintiff husband ratified the agreement by accepting the benefits of the agreement (see Denis v Denis, 155 AD2d 413 [1989]; cf. Niosi v Niosi, 226 AD2d 510 [1996]). Prudenti, P.J., Ritter, Luciano and Cozier, JJ., concur.