The following papers numbered 1-48 were read upon these cross motions: Defendant’s Notice of Motion dated December 12, 2019, Affidavit, Affirmation, Memorandum of Law, Exhibits and Proof of Service 1-16 Plaintiff’s Notice of Cross Motion, Affirmation, Affidavit, Exhibits and Proof of Service 17-26 Defendant’s “Affirmation and Reply Memorandum of Law in Further Support of Defendant’s Motion to Dismiss and in Opposition to Cross Motion,” Affidavit (of Defendant), Exhibits and Proof of Service 27-39 Plaintiff’s “Reply, Affirmation and Memorandum of Law,” Affidavit (of Plaintiff), Exhibits and Proof of Service 40-45 Letter (on notice) dated February 26, 2020 from Defendant’s Counsel 46 Letter (on notice) dated March 11, 2020 from Defendant’s Counsel 47 Letter (on notice) dated March 13, 2020 from Plaintiff’s Counsel 48 ADDITIONAL INDEX NUMBER 614710/2019 Decision and Order Pursuant to a stipulation dated and “so ordered” on January 24, 2020, Plaintiff’s plenary action to vacate the parties’ Separation Agreement — brought under Suffolk County index number 614710/2019 — was consolidated with the instant matrimonial action brought under Suffolk County index number 6109/2019. By Order of this Court dated February 7, 2020 (Lynch, J.), this Court dismissed Plaintiff’s Second Cause of Action in the matrimonial action, finding the 1998 Prenuptial Agreement between the parties to be valid. Defendant now moves to have the Complaint in the plenary action (614710/2019) dismissed and for attorney’s fees and sanctions. Plaintiff cross-moves1 for an Order allowing Plaintiff to file an Amended Complaint that comports with the aforementioned February 7, 2020 Order, for discovery regarding the finances of the parties, for counsel fees in the sum of $50,000.00, and for pendente lite spousal maintenance of $6,700.00 per month. By this Court’s Order dated February 7, 2020, the Prenuptial Agreement has been upheld and specifically found not to be unconscionable. Accordingly, the Separation Agreement which provides Plaintiff with financial benefits in addition to those required by the Prenuptial Agreement cannot be said to be unconscionable. Were the Separation Agreement to be set aside, Plaintiff’s rights would be governed by the Prenuptial Agreement, nullifying the additional benefits she receives including a 35 percent interest in a home in Dix Hills in which she lives rent free. Plaintiff’s equity in the home is currently valued at over $250,000.00. Furthermore, Plaintiff has stated in her Affidavit that she has been able to save $95,000.00 and her Statement of Net Worth lists a separate money market account of over $96,000.00. The Statement of Net Worth contains no present liabilities. Defendant now pays all Plaintiff’s shelter expenses, utilities, real estate taxes, auto lease payment and insurance, health insurance premiums, cell phone expenses, veterinary expenses, their child’s clothing expenses, cell phone expenses, college expenses and child support in excess of the statutory cap. The Court notes that the Separation Agreement was signed after significant negotiations between the parties, during which time Plaintiff was represented by counsel. Furthermore, Plaintiff has been living under the terms of the Separation Agreement and accepting the benefits of it for over 6 and 1/2 years, and the benefits will continue for an addition 3 and 1/2 years. The 1998 Prenuptial Agreement contained a waiver of spousal support, which was agreed to after a full disclosure of Defendant’s assets and was incorporated into the Separation Agreement. The Court’s adjudication confirming the validity of the Prenuptial Agreement in the order dated February 7, 2020 in the context of the divorce action (Suffolk County index number 6109/2019) supports dismissal of the plenary action (Suffolk County index number 614710/2019) as the Plaintiff receives more benefits pursuant to the Separation Agreement that is the subject of the plenary action than she did solely under the Prenuptial Agreement. Furthermore, the Separation Agreement is not unconscionable. Plaintiff has not raised a question of fact that the Separation Agreement was the result of inequitable conduct by Defendant. Rather, Plaintiff knew of Defendant’s assets, had an attorney represent her in the negotiations and negotiated better benefits than provided by the Prenuptial Agreement. The duly executed Separation Agreement is valid and controlling. See, Gottlieb v. Gottlieb, 138 A.D. 3 30 (1st Dept 2016). Accordingly, it is ORDERED that Defendant’s motion for dismissal is GRANTED and the Plaintiff’s Complaint in the plenary action (index number 614710/2019) is dismissed. Defendant also moves for legal fees and sanctions associated with this motion. Pursuant to 22 NYCRR 130-1, the Court, in its discretion, may award sanctions and legal fees for frivolous conduct. Considering all the facts and circumstances in the case at bar, the Court does not find the Plaintiff’s conduct to be frivolous. Accordingly, it is ORDERED that the branch of Defendant’s motion seeking legal fees and sanctions is DENIED. Plaintiff has cross-moved to amend the Complaint in the plenary action. However, Plaintiff failed to establish good cause to amend the Complaint and has failed to address this relief in her supporting Affirmation or Affidavit. Accordingly, that branch of the cross motion for leave to amend the Complaint in the plenary action is DENIED. The Separation Agreement constitutes a final financial settlement between the parties as clearly stated in the Separation Agreement itself. Accordingly, that branch of the cross motion for discovery to define the financial circumstances of the parties is DENIED. The issue of spousal support has been fully addressed by the Prenuptial and Separation Agreements between the parties. Accordingly, that branch of Plaintiff’s cross motion seeking temporary maintenance is DENIED. As the plenary action is not a matrimonial proceeding, there is no basis to award counsel fees in accordance with Domestic Relations Law 237 as requested by the Plaintiff’s cross motion. Additionally, an award of counsel fees is denied as barred by the language of the Separation Agreement. Accordingly, that branch of the Plaintiff’s cross motion for $50,000.00 in counsel fees is DENIED. It is, therefore, ORDERED that Defendant’s motion is GRANTED, the Compliant in the plenary action (Suffolk County index number 614710/2019) is dismissed and Plaintiff’s cross-motion for various relief is DENIED. This is the decision and Order of this Court. Dated: April 22, 2020
