Avildsen v. Prystay , 171 A.D.2d 13 ( 1991 )

OPINION OF THE COURT

Wallach, J.

We affirm the order appealed from essentially for the reasons stated by Justice Fingerhood. However the issue addressed by the dissent — the alleged unconscionability of the bargain (not discussed by the motion court and upon which the dissenters would reverse and remand for a further hearing) — requires a response.

The judicial power to annul a contractual obligation because of its unconscionability was known at common law (see, Matter of Friedman, 64 AD2d 70, 84) and it has found statutory expression in the Uniform Commercial Code (UCC 2-302). A pivotal finding which could trigger the exercise of such judicial nullification, whether under Code or common law, was where an egregiously oppressive contractual provision was perceived to emanate from a gross inequality in bargaining power between the contracting parties (e.g., Fischer v General Elec. Hotpoint, 108 Misc 2d 683; Leonedas Realty Corp. v Brodowsky, 115 Misc 2d 88; Jones v Star Credit Corp., 59 Misc 2d 189), resulting in a contract “such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other” (Earl of Chesterfield v Janssen, 2 Ves Sen 125, 155, 28 Eng Rep [Reprint] 82,100).

The difficulty with invocation of the doctrine here to reopen this contract, made on May 26, 1983 between the father and mother of a child born out of wedlock on November 5, 1981 for support of that child, is that the presumptive inequality of two such contracting parties has been considered and preempted by the Legislature in enacting section 516 of the Family Court Act. In recognition of a well-founded perception that a man and a woman enmeshed in a relationship of that kind are almost never in combat on a level playing field, the statute has crafted some fairly elaborate machinery to restore the balance. The section requires prior notice of the proposed support contract to specified public authorities, and the imprimatur of the court constituted by law as an omnipotent umpire to prevent overreaching after an open court hearing and such fact finding as the court may deem appropriate. The arrangement, made by two parties each represented by independent counsel, thus partakes of all the solemnity of a stipulation made in open court, with additional built-in safeguards. While any Judge is free to believe that a better piece of machinery could or should be devised, any judicial intervention of that sort is foreclosed by the supervening legislative solution.

Some of the unconscionability cases emphasize that the fairness vel non of the bargain under scrutiny must be appraised from the point of view of the parties at the time the bargain was made (e.g., Matter of Young, 81 Misc 2d 920). Prior to the date when this agreement became conditionally effective, by the mother’s signature, both plaintiff father and defendant mother were negotiating in the shadow of uncertainty as to the actual paternity of the child. Not only the parties but the State itself had a vital interest in resolving this uncertainty, and that primal State interest was held in 1979 to be the basic rationale supporting the constitutionality of Family Court Act § 516 in Bacon v Bacon (46 NY2d 477), a mere four years before the resolution of this controversy under the same statute. In Bacon the Court of Appeals rejected a constitutional attack on the statute based on lack of equal protection, leveled at the allegedly suspect distinction drawn in the legislation between legitimate and illegitimate children.

As a facial matter, it is not surprising that the Supreme Court Justice reviewing the bargain found the consideration tendered by the father adequate. He was to pay a lump sum of $55,000, plus the mother’s counsel fees of $8,000. He bound himself to pay monthly installments of $1,037.92 over the next 60 months, or a total in excess of $125,000. The fact that on June 9, 1983, only two weeks later, based on the most advanced serological scientific test available, an expert rendered a report fixing the likelihood of paternity at 99%, should not alter the finality or stability of the arrangement. If that had been crucial, the parties would have been free to defer finality until the test results were known; but, for whatever reason, they chose not to adopt this course. The outcome of the postagreement test procedure, clearly within the contemplation of the parties at the time the agreement was made, was not reserved by either as a future escape hatch for its alteration, nor was any such suggestion made before the Supreme Court Justice at the hearing held by her less than one month later on July 5, 1983. Therefore, in our view, no tribunal of the State is now competent, eight years later, to revise the settlement.

Such a conclusion is only strengthened by the subsequent conduct of the parties. Starting in 1984, based on the father’s contention that the mother had breached the nonmolestation provisions of the agreement, he withheld direct payment of the accruing installments from her by depositing them in escrow. Thereupon the mother enforced the father’s full compliance by the most powerful enforcement tool in the civil armory, a contempt proceeding against the father. She also sued for and recovered the interest accumulated on the arrears. Thus, in the most decisive way possible, she ratified the agreement.

Research has disclosed no case where a party has gone to law to extract every benefit obtainable under a contract, and has thereafter been permitted to repudiate the reciprocal obligations then regarded, with the benefit of hindsight, as too onerous. Apart from the manifest inequities, the bar to such conduct arises from the nature of the doctrine of unconscionability itself. As was observed in Super Glue Corp. v Avis Rent A Car Sys. (132 AD2d 604, 606), "The doctrine of unconscionability is to be used as a shield, not a sword, and may not be used as a basis for affirmative recovery. Under both the UCC and common law, a court is empowered to do no more than refuse enforcement of the unconscionable contract or clause”.

Accordingly, the order of Supreme Court, New York County (Shirley Fingerhood, J.), entered March 22, 1990, which denied and dismissed defendant’s application to vacate the court-approved agreement between the parties dated March 18, 1983, and for related relief, is affirmed without costs.