New York Domestic Relations Law Section 236 (B)(3)

Domestic Relations Law, 236 (B)(3) provides that "[a]n agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitled a deed to be recorded." Unlike CPLR 2104, DRL 236 (B)(3) does not carve out an open court exception. This issue has split the Departments with the First and Second Departments holding such agreements valid (see, Storette v. Storette, 11 AD3d 365, 784 N.Y.S.2d 34 [1st Dept. 2004]; Rubenfeld v. Rubenfeld, 279 AD2d 153, 720 N.Y.S.2d 29 [1st Dept. 2001]; Balkin v. Balkin, and Weissman v. Weissman, supra) while the Third and Fourth Departments have held to the contrary (see, Lischynsky v. Lischynsky, 95 AD2d 111, 466 N.Y.S.2d 815 [3rd Dept.1983], Giambattista v. Giambattista, 89 AD2d 1057, 454 N.Y.S.2d 762 [4th Dept.1982], and Hanford v. Hanford, 91 AD2d 829, 458 N.Y.S.2d 418 [4th Dept. 1982]). It is axiomatic that this court is bound by Second Department authority (cf, Mohen v. Stepanov, 59 AD3d 502, 504, 873 N.Y.S.2d 687 [2nd Dept. 2009], citing Mountain View Coach Lines v. Storms, 102 AD2d 663, 664, 476 N.Y.S.2d 918 [2nd Dept. 1984]) and must hold, in the appropriate case, that an oral stipulation spread on the record is valid and enforceable. However, there are some issues which justify the conclusion that the open court stipulation in this case should not be enforced. In Castellano v. Castellano, 66 AD3d 942, 888 N.Y.S.2d 139 (2nd Dept. 10/27/09, citing Zafran v. Zafran, 28 AD3d 752, 753, 813 N.Y.S.2d 305 [2nd Dept. 2006]; Korngold v. Korngold, 26 AD3d 358, 810 N.Y.S.2d 206 [2nd Dept. 2006]; Leahy v. Leahy, 9 AD3d 351, 352, 778 N.Y.S.2d 915 [2nd Dept. 2004]; and Harrington v. Harrington, 103 AD2d 356, 359, 479 N.Y.S.2d 1000 [2nd Dept. 1984]), the Appellate Division stated that such oral agreements were enforceable "if spread upon the record and found to be fair and reasonable by the court". The highlighted language emanates from Domestic Relations Law, 236 (B)(3) which permits marital agreements "provided that such terms were fair and reasonable at the time of making of the agreement and are not unconscionable at the time of entry of final judgment."