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HEATHER H. KANY, plf-ap, v. STEVEN KANY, def-res

3502. HEATHER H. KANY, plf-ap, v. STEVEN KANY, def-res — Donohoe Talbert, LLP, New York (Margaret M. Donohoe of counsel), for ap — Berman Frucco Gouz Mitchel & Schub P.C., White Plains (Benjamin E. Schub of counsel), for res — Order, Supreme Court, New York County (Lori S. Sattler, J.), entered on or about September 11, 2015, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a) and/or for summary judgment pursuant to CPLR 3212, and for counsel fees, unanimously affirmed, without costs.

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3502. HEATHER H. KANY, plf-ap, v. STEVEN KANY, def-res — Donohoe Talbert, LLP, New York (Margaret M. Donohoe of counsel), for ap — Berman Frucco Gouz Mitchel & Schub P.C., White Plains (Benjamin E. Schub of counsel), for res — Order, Supreme Court, New York County (Lori S. Sattler, J.), entered on or about September 11, 2015, which granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211(a) and/or for summary judgment pursuant to CPLR 3212, and for counsel fees, unanimously affirmed, without costs.

Plaintiff’s fraud claims are conclusively refuted by the plain terms of the parties’ 1995 written settlement agreement, which was referenced by, and attached as an exhibit to, the complaint. Pursuant to the agreement, plaintiff waived any and all right and claim to “any participation or interest that [defendant] may now or in the future have in any retirement plan.” Thus, she assumed the risk that at the time the agreement was executed defendant had an interest in a retirement plan of which she was not aware. Moreover, plaintiff “specifically acknowledged that she had made her own independent investigation of defendant’s business affairs and was waiving further disclosure” (DiSalvo v. Graff, 227 AD2d 298 [1st Dept 1996]; and see Kojovic v. Goldman, 35 AD3d 65, 68-69 [1st Dept 2006], lv denied 8 NY3d 804 [2007]).

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