This section contains the nature of the case and procedural background.

Daniel N. Kohn died. Hockett (P), as the executor of the decedent's estate, petitioned against Barbara Lutz, also known as Barbara Kohn (D), who is the decedent's surviving spouse, to recover certain property on behalf of the decedent's estate. D asserted a counterclaim for a decree declaring that pursuant to a prenuptial agreement dated November 10, 2006, she was entitled to a payment upon the decedent's death in the amount of $3,500,000, reduced by the amount of four mortgages and one half of the value of the funds in joint accounts identified in the prenuptial agreement. D moved for summary judgment and P for summary judgment dismissing the counterclaim. P contended that the prenuptial agreement provided for a payment to D upon the decedent's death in the amount of $3,500,000, reduced by the amounts of the four mortgages and the entire value of the funds in the joint accounts. The court granted D's motion. The court found that the clause in the prenuptial agreement required that the payment to the wife be reduced by the amount of the mortgages and only one half of the value of the joint accounts. P moved for leave to renew his opposition and submitted extrinsic evidence not previously available, namely, a transcript of the testimony of the wife's former attorney taken at a deposition held subsequent to the original motion practice. The court affirmed its prior holding. P then asserted an affirmative defense based on mutual mistake. P and D both appealed.

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