Is the balance of a contract enforceable if a specific provision is unenforceable and there is no severability clause?

More importantly, even if the Supreme Court was correct in determining that certain terms of the separation agreement are illegal and unenforceable, the terms directing the defendant to compensate the plaintiff for transferring her interest in the business to him would nevertheless be severable and enforceable (see generally Christian v. Christian, 42 N.Y.2d 63, 73, 396 N.Y.S.2d 817, 365 N.E.2d 849 ). Where an agreement consists of an unlawful objective in part and a lawful objective in part, the court may sever the illegal aspect and enforce the legal one, so long as the “illegal aspects are incidental to the legal aspects and are not the main objective of the agreement” (Donnell v. Stogel, 161 A.D.2d 93, 97–98, 560 N.Y.S.2d 200; see Carruthers v. Flaum, 365 F.Supp.2d 448, 468 [S.D.N.Y.]; McCall v. Frampton, 81 A.D.2d 607, 608, 438 N.Y.S.2d 11). Whether a contract is to be enforced in its entirety or is severable is generally a question of intent, “to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted” (Christian v. Christian, 42 N.Y.2d at 73, 396 N.Y.S.2d 817, 365 N.E.2d 849). Moreover, “[c]ourts will be particularly ready to sever the illegal components and enforce the other components of a contract where the injured party is less culpable and the other party would otherwise be unjustly enriched by using his own misconduct as a shield against otherwise legitimate claims” (Artache v. Goldin, 133 A.D.2d 596, 599, 519 N.Y.S.2d 702; see Empire Magnetic Imaging v. Comprehensive Care of N.Y., P.C., 271 A.D.2d 472, 477, 705 N.Y.S.2d 652 ). Here, the separation agreement contained an express provision that the doctrine of severability shall apply should any particular term of the agreement be deemed invalid or unenforceable.

Finally, we conclude that the provision at issue on appeal is also unenforceable because the other provisions that the Supreme Court found to be unenforceable are not severable from the Agreement. Thus, the entire Agreement is unenforceable. The Agreement contains no severability clause, its main objective is to restrict the rights that the patient would ordinarily have pursuant to case law and the CPLR in prosecuting her medical malpractice claim, and the circumstances surrounding the parties at the time that the patient signed the Agreement do not support a conclusion that any provision therein is severable therefrom (see Lanza v Carbone, 130 A.D.3d 689, 692-693; see also Georgia Props., Inc. v Dalsimer, 39 A.D.3d 332, 334).

Here, Wife submitted no evidence that Husband lacked the intent to modify the Agreement when he allegedly promised to do so. Fraudulent intent cannot be inferred merely from the fact of nonperformance. Brown v. Lockwood, 76 A.D.2d at 733, 432 N.Y.S.2d 186. Furthermore, Wife's argument that the parties did not intend to be bound by the agreement as written is belied by the unambiguous terms of the Agreement, which states that it was to be effective “as of the date it is executed by both parties,” “shall be binding” and may be incorporated into any final judgment of divorce. See Agreement, p. 8 “Effective Date of Agreement,” p. 10 “Binding Effect” and p. 11 “Submission to Court.” The Agreement also contains an integration clause (p. 10 “Entire Understanding”) and states that it may not be modified absent a writing signed by both parties or as ordered by a court. Id.; p. 11 “Modification.”

And the Agreement is not silent as it relates to the financial terms of maintenance and child support—the provisions Wife claims were saved for later agreement. The parties expressly waived their right to receive maintenance in a section of the Agreement entitled “Maintenance”; the subtitle is “Mutual Waiver.” The parties each represented in that section that “[i]t is the mutual desire of the parties that hereafter they shall each maintain and support themselves separately and independently of the other.” They then proceeded to release and discharge each other, in separate paragraphs of that section, from any claim or right to receive temporary or definite alimony, maintenance or support. To hammer the point home, Wife also acknowledged that “by the execution of [the] Agreement she cannot at any time in the future make any claim against Husband for alimony, support, or maintenance of any kind whatsoever for herself.”

As to child support, the parties also expressly agreed that “no demand for

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child support payments will be made by either party upon the other.” ²

Therefore, Wife has not met her burden of establishing that the Agreement was fraudulently induced. As a result, the Agreement is valid and enforceable. The parties are to contact the court by September 10, 2013 to schedule a conference to discuss all other outstanding matters in this action.

^2. Husband concedes this provision of the Agreement is unenforceable because it does not comply with the requirements of the Child Support Standards Act, but correctly points out that the remainder of the Agreement may be severed and enforced. See Seligman v. Seligman, 78 Misc.2d 632, 356 N.Y.S.2d 978 (Kings Co.1974) (separation agreement may be deemed valid separate and apart from support provisions). Although the Agreement contains no severability clause (cf. Christian v. Christian, 42 N.Y.2d at 73, 396 N.Y.S.2d 817, 365 N.E.2d 849), the language of the Agreement reflects and the parties' testimony established, the parties' intent to be bound by the Agreement notwithstanding the need to alter certain financial provisions. See Rubin v. Rubin, 72 A.D.2d 810, 421 N.Y.S.2d 914 (2d Dept.1979). Indeed, it is Wife's argument that the parties themselves were to modify the support provisions.

The maintenance provisions, if found to be unenforceable, would be severable from the remainder of the Prenuptial Agreement, which would remain enforceable. "[W]hether the provisions of a contract are severable depends largely upon the intent of the parties as reflected in the language they employ and the particular circumstantial milieu in which the agreement came into being" Matter of Wilson, 50 NY2d 59, 65 [1980]; Scotti v. Tough Mudder Inc., 63 Misc 3d 843, 857 [Sup Ct, Kings County 2019] ). The court finds that many of the provisions are discrete in nature, and turns specifically to paragraph 24 of the Prenuptial Agreement, which states, in relevant part: "If any party commences an action or proceeding to modify, alter, rescind, declare null and void, or set aside this Agreement in whole or in part," thereby implying that challenged clause or set of clauses could be severable. Accordingly, the court finds that even if it is determined that the maintenance provisions are unenforceable, the remainder of the agreement would remain viable.

Turning to the issue of ambiguity, we note that the June 1 agreement is entitled "Agreement between Steven L. Aaron, et al and Lillian Aaron, et al" and provides at paragraph 3: "In consideration of Steven L. Aaron's relinquishment of certain claims against Lillian Aaron, et al, and the relinquishment of his inheritance rights from Lillian Aaron, Steven L. Aaron will receive not less than 25% of the holdings [real estate or equivalent] of Lillian Aaron as of the date of this agreement exclusive of mutually agreed upon assets. The final percentage of the holdings of Lillian Aaron to be distributed to Steven L. Aaron, is to be negotiated at the next meeting to the best advantage tax wise to both parties."

Supreme Court correctly found that the document does not otherwise define the term "certain claims." Moreover, the court found nothing surrounding the execution of the document that clarifies this term. While the mediator's notes make reference to a list of such claims, no list was produced at the hearing. Furthermore, Supreme Court found, and we agree, that the phrase "Lillian Aaron, et al" is ambiguous and is not explained by the document or the surrounding circumstances. Whether

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such phrase was intended to include some or all of the other defendants and whether or not defendant could bind them by her signature are all matters which are unknown on this record. Equally uncertain is the obligation assumed by defendant. What would constitute not less than 25% of her real estate or equivalent holdings "exclusive of mutually agreed upon assets" is unexplained, resulting in only an unenforceable agreement to agree (see, Martin Delicatessen v Schumacher, 52 NY2d 105, 109, supra).

We also find that Supreme Court correctly determined the June 1 agreement to be one entire, nonseverable document. "Whether a contract is entire or severable generally is a question of intention, to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted" (Christian v Christian, 42 NY2d 63, 73 [citation omitted]; accord, Barden & Robeson Corp. v Timmerman, 116 AD2d 814, 815-816). This agreement contains no severability clause. Moreover, the absence of an expression of consideration in any paragraph (other than paragraph 3) flowing from plaintiff to defendant militates against severability.