Preview:

J.D. v P.D. (2006 NY Slip Op 52166(U))
[*1]


Decided on November 20, 2006
Supreme Court, New York County

101745/06
Laura Visitacion-Lewis, J.
By Summons and Verified Complaint filed April 4, 2006, plaintiff, J.D., brings an action against defendants, P.D. and "Jane and John Doe," which seeks to vacate the Stipulation of Settlement (Stipulation) entered into by and between the D.'s on July 13, 1998, and incorporated, but not merged, into their Judgment of Divorce entered on August 11, 1998 (Virginia E. Yancey, J., Sup. Ct., Kings Co., Ind. No. ****/96). The gravamen of plaintiff's claims is that defendant P.D. engaged in fraud by failing to fully disclose his assets, and colluded with judges and court personnel to manipulate various aspects of the trial that was in progress at the time the parties entered into the settlement discussions that resulted in the Stipulation.
Defendant P.D., the plaintiff in the original matrimonial action, files an Amended Notice of
J.D. v P.D. (2006 NY Slip Op 52166(U))
Motion and supporting Memorandum of Law seeking dismissal of the complaint on the basis of documentary evidence (CPLR 3211[a][1]) and/or as barred by the statute of limitations (CPLR 3211[a][5], 213[8]), and for failure to plead fraud with the requisite degree of particularity (CPLR 3016[b]); or, alternatively, to strike specified paragraphs of the complaint on the ground that they
contain prejudicial and scandalous material unrelated to plaintiff's substantive claims.[FN1]
By Amended Notice of Cross-Motion, plaintiff seeks leave to amend the complaint in the event that her allegations are determined by the court to be inadequately pleaded. Defendant's attorney files an Affirmation in Further Support of Dismissal and in Opposition to Cross-Motion [*2]to Amend, together with a Reply Memorandum of Law. For the reasons that follow, defendant's motion to dismiss the complaint as time barred, on the basis of documentary evidence, and as insufficiently pleaded, are granted, and plaintiff's cross-motion to amend the complaint is denied.
BACKGROUND
The parties were married on ****, 1978, in the County of Westchester, State of New York. On January 10, 1996, an action for divorce was commenced by P.D. against J.D. in Supreme Court, Kings County, under Index No. ****/96. During the course of those proceedings, J.D. was consecutively represented by four sets of attorneys: Polizzotto & Polizzotto; Ralph E. Gansell, Esq.; Raoul Lionel Felder, P.C.; and, for the six days of trial held in March 1998 and the mid-trial negotiations that led to settlement, Saul Edelstein, Esq.
The terms of the parties' agreement, which were memorialized in the Stipulation executed on July 13, 1998, provided, inter alia, for the distribution of their property, and contained acknowledgments that they had "exercised their rights to disclosure and to compel inspection of the other's books and records, business and personal, and ... to have accountants, appraisers and other investigators, appraise or evaluate the other's property" (Stipulation,

Download 2006_52166.pdf

New York Law