Chapter 40 ALLEGATIONS IN VACATUR PROCEEDINGS

JurisdictionNew York

Chapter Forty

Allegations In Vacatur Proceedings

I. The Prima Facie Case and Evidentiary Burden in Setting Aside an Agreement

Judicial policy to construe complaints liberally notwithstanding, a complaint to vacate an agreement must set forth the allegations "in detail and with particularity,"6371 "supported by an evidentiary showing,"6372 or be dismissed, like any other complaint, if it makes only general conclusory allegations.6373 Conclusory assertions do not carry even the burden necessary for a hearing.6374 "The essential material facts supporting the cause of action must still appear on the face of the complaint, or a plausible explanation provided for the failure to do so when the pleadings are challenged. The gravamen must set forth the facts with particularity."6375

The mere incantation of the words of indictment, namely, "fraud," "duress," "overreaching," or "unconscionability" standing alone does not rise to the level of a triable issue sufficient to warrant a hearing regarding vacatur and, as such, should be denied via summary judgment. Conclusory allegations unsupported by evidence must result in dismissal.6376 Use of words such as "tricky," "duress" and "mental anguish" fails to substantiate the practice of any form of overreaching or inequitable behavior in achievement of a settlement.6377 Pursuant to CPLR 3016(b)(6), the circumstances constituting the wrong must be pleaded in detail. Details of any coercive conduct (or other wrongdoing in general) must be set forth with specificity and tied to the improperly given assent.6378

In McCaughey v. McCaughey,6379 the husband, a sophisticated investment banker, entered into the separation agreement after lengthy negotiations with the aid of counsel and then defaulted. Although he expressly represented in the agreement that it was not the result of fraud or duress, was signed voluntarily, that it constituted the entire understanding of the parties, and that there were no promises other than those expressly set forth in the agreement, he, nevertheless, claimed that the agreement was the product of fraud and overreaching. The First Department held it was incumbent upon him to show by evidentiary facts that his defenses were real in order to defeat summary judgment, and he did not do so. Rather, his allegations were conclusory, and his motion was denied.

II. Benefits of Defending Vacatur Action By Summary Judgment Motion

A party defending a spurious action for vacatur whose complaint does not set forth a prima facie case is well advised to seek early and immediate dismissal via a motion for summary judgment.6380 Such an application, otherwise dubbed the poor man's discovery, offers two wonderful benefits: (1) it compels the opposing party to lay bare all of his or her evidence so that the strengths or weaknesses of a party's case may be better studied, thus, enabling the party seeking summary judgment to determine whether to fight or settle; and (2) it provides a possible shortcut verdict, which stops the financial hemorrhaging incurred during the defense of a baseless action. The court must probe the existence of triable issues of fact, which must be presented in evidentiary fashion entitling them to a trial or else face summary dismissal.6381 Under CPLR 3212(b),

Supporting proof; grounds; relief to either party: The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. (emphasis added)

III. Courts Must Examine Evidentiary Facts In Ruling On Summary Judgment

When a summary judgment motion is made seeking a divorce decree incorporating a separation agreement, the movant meets his or her prima facie burden by offering an agreement that contains a representation that it was not the product of fraud or duress, awards meaningful benefits to the other spouse and establishes that the distribution of marital assets was derived through substantive negotiations between counsel.6382

The proponent of a summary judgment motion has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion regardless of the sufficiency of the opposing papers.6383 Where the moving party has demonstrated its entitlement to summary judgment, the burden shifts to the party opposing the motion who must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do. The submission of a hearsay affirmation by counsel alone does not satisfy this requirement.6384A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.6385 Although a court must accept the facts of the party opposing summary judgment in the best light,6386 it may not turn a blind eye to fact or governing law.

The party seeking vacatur, as the opponent of the motion to dismiss the action, must lay bare the facts behind his or her case in an evidentiary manner. In opposing summary judgment, once the movant has made the requisite showing, it becomes incumbent upon the opponent to reveal his or her proof and set forth sufficient evidence of a non-conclusory nature to create a triable issue of fact.6387 A failure to do so will earn the movant summary judgment with respect to the validity of the agreement.6388 Lounsbury v. Lounsbury6389 highlights the appropriateness of summary judgment motions in proceedings to vacate settlement agreements; namely, that a court may grant summary judgment upon its finding that a settlement agreement is valid only where the spouse opposing the validity of the agreement fails to state a triable issue of fact.

Reinforcing this view, Professor David D. Siegel has observed that when the moving party (for summary judgment) has made a prima facie showing of a basis for granting a summary judgment motion, the opposing party

must come forward and lay bare his proofs of evidentiary facts showing that there is a bona fide issue requiring a trial [and] cannot defeat this motion by general conclusory allegations which contain no specific factual references. If a key fact appears in the movant's papers and the opposing party makes no reference to it, he is deemed to have admitted it. 6390

Accordingly, in Professor Siegel's view, the submission of a perfunctory, knee-jerk opposition to the motion is insufficient to defeat the motion. Evasiveness in an opposing affidavit, indirect reference to the key facts, undue accent on immaterial points, and any other mode of behavior suggesting that the opposing party really cannot deny the movant's evidence will give it an aura of sham and increase the prospects of a grant of the motion.

IV. Treatment of a Motion To Dismiss For Failure to State a Claim As a Motion For Summary Judgment

A motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7) may be treated as a motion for summary judgment,6391 during which time the court's sole function is to determine, from the four corners of the pleading, whether a cognizable claim for relief exists.6392 While a...

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