Opinion
24713/08.
Decided April 1, 2010.
Sigismondo F. Renda, Esq., Renda Associates, P.C., Attorney for the Plaintiff, Brooklyn, New York.
David H. Singer, Esq., Attorney for the Defendant, The Woolworth Building, New York, New York.
Upon the foregoing papers, the defendant, Joseph E. Bonica, moves for an order dismissing the complaint herein pursuant to CPLR 3211(a)(7) and vacating a notice of pendency filed on November 14, 2008. The plaintiff, Diane D. Marshall, f/k/a Diane D. Bonica, opposes the defendant's application and cross moves for leave to amend her reply pursuant to CPLR 3025(b) and, thereupon, for an order dismissing the defendant's first counterclaim pursuant to CPLR 3211 and 3212.
Background
On September 17, 1979, plaintiff and defendant, became owners as tenants by the entirety of the real property at 1288 East 58 Street in Brooklyn. On or about November 26, 1996, they were divorced in Washington State. At present, defendant is in sole possession of the real property. In August 2008, plaintiff commenced the instant action seeking a partition of the property or, alternatively, its sale and a division of the proceeds. Several weeks after this action was commenced, plaintiff filed a notice of pendency against the property. In his answer, defendant asserted, as is applicable here, a first counterclaim in which he alleged that he was entitled to equitable distribution of the parties' marital property, including "real estate acquired during the marriage." In a reply, plaintiff denied the allegations of the counterclaim, except to admit the date of their marriage and the names and dates of birth of the parties' children.
In his motion, defendant seeks an order dismissing the complaint herein and vacating the notice of pendency filed by plaintiff. Defendant asserts that, on November 23, 1995, plaintiff abandoned him and moved to Washington. Thereafter, on November 26, 1996, she obtained an "Ex Parte Judgment of Divorce" which specifically stated that the question of the division of the parties' assets was reserved for future decision upon acquisition of personal jurisdiction over defendant or for further proceedings in other jurisdictions. According to defendant, the parties continue to own the property as tenants by the entirety and, consequently, a partition action may not be brought by plaintiff, a party to an ex parte foreign divorce; instead, "an action for equitable distribution is appropriate."
In her cross motion, plaintiff requests leave to amend her reply so as to add two (2) affirmative defenses to defendant's counterclaims and, upon such amendment, an order dismissing the first counterclaim for equitable distribution. In the proposed reply, plaintiff seeks to assert that equitable distribution is barred by the statute of limitations and the doctrine of laches. Plaintiff points out that, while she was pursuing a divorce action in Washington in 1996, defendant commenced a divorce action in Kings County, which was eventually dismissed, by order dated July 18, 1997, on the ground that the marriage between the parties had already been dissolved by a Washington divorce decree. Although defendant was advised to bring a plenary action for equitable distribution by the court in Kings County, (J. Yancey), he did not do so at that time. Plaintiff argues, therefore, that no prejudice will result from her proposed amendment. With respect to the merit of her proposed affirmative defenses and her request for dismissal of the first counterclaim, she contends that the time limitation for bringing an action for equitable distribution is six years pursuant to CPLR 213 (1). Plaintiff also urges that the doctrine of laches bars plaintiff's first counterclaim because his delay in bringing a plenary action for equitable distribution has been prejudicial to her since, as things now stand, he would inherit her share of the real property in the event of her death. Although the general rule is that an ex parte foreign divorce decree will not transform a tenancy by the entirety in marital property to a tenancy in common, plaintiff maintains that there is an exception where, as here, service of process had been effected upon the defendant-spouse in the foreign divorce action. According to plaintiff, in the "Findings of Fact and Conclusions of Law" of the Washington court, the court specifically found that defendant was "personally served on August 12, 1996" in New York. Therefore, since the Washington judgment transformed title to the real property to a tenancy in common, she asserts that she is entitled to a partition of the subject property.
CPLR 213 (1) states that: "The following actions must be commenced within six years: 1. an action for which no limitation is specifically prescribed by law." Plaintiff also cites Ricca v Valenti , 24 AD3d 647 [2005]).
Plaintiff cites Anello v Anello ( 22 AD2d 694 [1964]).
In opposition to plaintiff's cross motion, defendant points out that the "personal service" exception upon which plaintiff relies refers to personal service within the state where the divorce decree was issued; in this case, Washington. Defendant also points out that the Washington court expressly excluded the division of New York property from its decree. Insofar as the statute of limitations is concerned, defendant notes that he is not seeking to enforce a previously issued judgment of equitable distribution; rather, he seeks to obtain equitable distribution of marital property currently held as tenants by the entirety. Defendant further asserts that the doctrine of laches is not applicable because plaintiff has not shown any injury from the alleged delay and, in fact, she could have brought her own action for equitable distribution in New York .
In reply, plaintiff repeats her contention that a proceeding to obtain equitable distribution following a foreign judgment of divorce must be commenced within six (6) years of the entry of the foreign decree. Plaintiff also claims that she has been prejudiced by the delay since she cannot transfer her share of the real property.
Discussion
It is uncontroverted that the Washington judgment terminated the parties' status as husband and wife and that judgment must be accorded full faith and credit in the courts of New York ( see Williams v North Carolina, 317 US 287; Elson v Elson, 149 AD2d 141, 545 NYS2d 311 [2 Dept., 1989]). It is equally well settled, however, that a valid ex parte foreign divorce terminates only the marital status of the parties. Such a divorce is "divisible" in that it has no effect upon the property held by the parties outside of the jurisdiction of the state issuing the judgment ( see Vanderbilt v Vanderbilt, 1 NY2d 342, 153 NYS2d 1, affd. 354 U.S. 416, 77 S.Ct. 1360).
Plaintiff suggests that, since jurisdiction in the Washington divorce action was based upon personal service of process upon defendant, the foreign divorce decree transformed the tenancy by the entirety into a tenancy in common, citing Anello v. Anello ( 22 AD2d 694, 253 NYS2d 759 [2 Dept., 1964]). The Court of Appeals in Anello v. Anello stated that
. . . the foreign divorce decree, although valid to dissolve the marital status, nevertheless, the decree, having been obtained without either the service of process on the wife or her appearance in the foreign action, was ineffective to transform the tenancy by the entirety into a tenancy in common. The full faith and credit provision of the Federal Constitution "compels recognition of a foreign divorce only as an adjudication of the marital status, and not of any property rights that may be incident to that status" (27B C.J.S., Divorce, § 382, p. 885). Hence, unless based upon personal service or voluntary appearance, such a decree cannot affect the spouse's property rights here (Vanderbilt v. Vanderbilt, 1 N Y 2d 342, affd. 354 U. S. 416; Huber v. Huber, 26 Misc 2d 539, 545).
( Anello v. Anello, 22 AD2d 694, supra).
In Vanderbilt v Vanderbilt ( 1 NY2d 342, supra), upon which the Anello court relied, the Court of Appeals made it clear (at 351) that, in order for due process of law to support a personal judgment, there must be "personal service within the State where suit is brought." Here, service of process was never made in Washington where the divorce was granted. Therefore, since the ownership of the subject real property by the parties as tenants by the entirety remained intact despite the severance of their marital status by the foreign divorce decree, plaintiff is barred from maintaining this action since tenants by the entirety may not obtain partition ( Anello v. Anello, 22 AD2d 694, supra; Real Property Actions and Proceedings Law § 901).
To provide for the distribution of property not affected by a foreign judgment of divorce, Domestic Relations Law section 236 (B) (2) and (5) provide that a divorced spouse who possesses an interest in marital property within this state may commence an action for equitable distribution of property following entry of a foreign judgment of divorce ( see Mahoney v. Mahoney, 131 AD2d 822, 517 NYS2d 184 [2 Dept., 1987]). This defendant has done by way of his first counterclaim, which plaintiff seeks to dismiss if she is permitted to amend her reply. CPLR section 3025 (b) provides that leave to amend pleadings "shall be freely given up such terms as may be just.". A court hearing a motion for leave to amend will not examine the merits of the proposed amendment "unless the insufficiency or lack of merit is clear and free from doubt. . . . In cases where the lack of merit of the proposed amendment "unless the insufficiency on lack of merit is clear and free from doubt . . . In cases where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied" ( Norman v Ferrara, 107 AD2d 739, 484 NYS2d 600 [2 Dept., 1985]; see Lucido v. Mancuso , 49 AD3d 220 , 851 NYS2d 238 [2 Dept.,2008]).
An action seeking a judgment declaring rights in property subject to equitable distribution is subject to a six (6) year statute of limitations. "Furthermore, six-year statute [begins] to run from the date of entry of the . . . equitable distribution judgment, which determined the plaintiff's rights in the property'" ( Ricca v. Valenti , 24 AD3d 647 , 807 NYS2d 123 quoting Yecies v. Sullivan, 221 AD2d 433, 633 NYS2d 797 [2 Dept., 1995]). In this case, no equitable distribution judgment has been entered. Therefore, plaintiffs' proposed statute of limitations defense to defendant's first counterclaim is without merit.
The defense of laches consists of an unreasonable delay by one party to the prejudice of the other but, mere delay, however long, without the necessary elements to create an equitable estoppel, does not preclude the granting of equitable relief ( see Weiss v Mayflower Doughnut Corp., 1 NY2d 310, 152 NYS2d 471). Here, defendant's conduct did not cause plaintiff to change her position to her detriment. Plaintiff could have commenced an action in New York seeking equitable distribution, but she did not do so, as the Washington court advised. Although she suggests that she has suffered some injury because "her interest in the real property is open to passing to her ex-husband" in the event she were to die, her right to equitable distribution vested when the foreign judgment of divorce was rendered and it would not abate upon her death ( see Peterson v Goldberg, 180 AD2d 260, 585 NYS2d 439 [2 Dept., 1992]). Consequently, her proposed laches defense is likewise without merit. Accordingly, the cross motion by plaintiff is denied. Defendant's counterclaims are severed and continued.
The court notes that, as a practical matter, the continuance of defendant's counterclaim for equitable distribution serves the salutary purpose of providing the means for resolving the issue of the division of the parties' jointly held asset. In the event this court granted plaintiff's cross motion to dismiss defendant's first counterclaim, there would appear to be no remedy available to the parties since partition is clearly not available under the applicable law.
The foregoing constitutes the decision and order of this court.