Opinion
Index No. I2017006742
07-28-2021
D.D., Plaintiff, v. C.N.D., Defendant.
Karl A. Scully, Esq., Attorney for Plaintiff, Mount Vernon, New York David S. Stern, Esq., Attorney for Defendant, Rochester, New York
Karl A. Scully, Esq., Attorney for Plaintiff, Mount Vernon, New York
David S. Stern, Esq., Attorney for Defendant, Rochester, New York
Richard A. Dollinger, J.
Plaintiff commenced this post-judgment proceeding in 2017 by filing a complaint purporting to set forth causes of action for fraud, estoppel, constructive emancipation and unjust enrichment. The estoppel cause of action in reality is not an affirmative claim for relief, but an argument against the use of collateral estoppel by the Defendant. And at heart, the entire complaint is nothing more than an attempt to vacate Defendant's child support obligation under the parties’ Separation Agreement and Judgment of Divorce.
In October 2020, Defendant filed a motion for to dismiss or, in the alternative, summary judgment dismissing the complaint, arguing primarily that the action is barred as a matter of law by collateral estoppel/res judicata. The Court scheduled a return date, which was adjourned several times. On the return date, the plaintiff defaulted and provided no responding papers. In the face of the default, the Court granted the motion for summary judgment and requested submission of an attorneys fee affidavit from the defendant's counsel. Thereafter, the plaintiff moved to vacate the default finding by the Court. CPLR 5015(a)(1).
At the outset, while Plaintiff claims that dismissal should not have been granted because discovery had not been completed, Plaintiff failed to make a showing that facts essential to justify opposition to the motion to dismiss would be uncovered through discovery. The contention that further discovery may yield some evidence of fault on the defendant's part is purely speculative. The mere hope that a party might be able to uncover some evidence during the discovery process is insufficient to deny this motion to dismiss. Winter v Metro. Life Ins. Co. , 71 Misc 3d 1231(A) [Sup Ct 2021], quoting Gabrielli Truck Sales v Reali , 258 AD2d 437, 438 [2nd Dept 1999]. Indeed, Plaintiff had considerable time while the motion was pending to conduct discovery - the matter was set for argument on the motion some seven months after the motion was initially made. Nonetheless, Plaintiff did not seek additional time to respond to the motion. Finally, Defendant's arguments for dismissal are "purely legal issues for which no further analysis or discovery of facts is necessary" ( U.S. Bank Nat. Ass'n v DLJ Mortg. Capital, Inc. , 42 Misc 3d 1213(A) [NY Sup 2014], affd , 121 AD3d 535 [1st Dept 2014] ).
Turning directly to the motion to vacate the default, "to establish an excusable default under CPLR 5015 (a) (1), the defaulting party must proffer a reasonable excuse for the default as well as a meritorious defense to the action or proceeding ( Calaci v Allied Interstate, Inc. , 108 AD3d 1127, 1128 [4th Dept 2013] ). In the Court's view, Plaintiff has established neither. Plaintiff's attorney claims that there was a problem with the invitation to the motion hearing that was held virtually by Teams. However, the return date of the motion had been set by the Court more than a month before - on March 24, 2021 - and yet no papers in opposition, or papers requesting an extension, were ever served by Plaintiff - despite the fact that some seven months had elapsed between the filing of the motion and the ultimate return date. Moreover, there is no evidence that Plaintiff's counsel attempted to call the court on the date of the hearing. Under these circumstances, the Court does not deem Plaintiff's excuse for the default to be reasonable.
Even assuming, arguendo, that Plaintiff had a reasonable excuse for the default, the Court further concludes that the claims lack merit. At the outset, inasmuch as what Plaintiff is truly seeking is to vacate the support provisions of a Separation Agreement that was incorporated, but not merged, in the Judgment of Divorce, a plenary action, rather than a motion under the index number of the divorce, was necessary (see generally Bryant v Carty , 118 AD3d 1459, 1459 [4th Dept 2014] ). Thus, dismissal is warranted on that basis alone, though such would be without prejudice.
More to the point, the Court agrees with Defendant that Plaintiff's claims are barred by res judicata and the release contained in the parties’ Separation Agreement. All of the so-called incidents of "marital fraud" to which Plaintiff points - i.e. the alleged scheme to obtain a green card by making false accusations against Plaintiff, the alleged dubious circumstances regarding the paternity test conducted in 2011, and the alleged fraudulent deeding of the parties’ Dominican residence to Defendant - occurred prior to the parties’ divorce, and these circumstances were known, or could have reasonably been known, to Plaintiff at the time of the divorce. Accordingly, such claims are barred by res judicata (see generally Smith v Russell Sage Coll. , 54 NY2d 185, 193 [1981] ; c.f. Ashley v Ashley , 139 AD3d 651, 652 [2d Dept 2016] [res judicata did not bar claim where "the defendant failed to establish that the plaintiff knew or should have known of the facts constituting the claim prior to judgment being entered in the divorce action"]). In addition, the parties’ separation agreement contains a broad release, encompassing, inter alia, "any and all claims, causes of action, liabilities, rights, interests, demands or other obligations of any kind." Such a broad release bars Plaintiff's present claims as well (see Sparacio v Sparacio , 283 AD2d 481 [2d Dept 2001] ).
Moreover, it is difficult for the Court to see how any of these claims have perpetrated actual harm on Plaintiff. With respect to the alleged and so-called "I-360 VAWA ("Violence Against Women Act") Scam Marriage Fraud," for example, Plaintiff's primary complaint appears to be that Defendant perpetrated this alleged fraud in order to obtain a green card - but that has no bearing whatsoever on child support, relief from which is what Plaintiff ultimately seeks. With respect to the alleged fraudulent deeding of the residence to Defendant, in addition to this claim appearing extremely dubious in when the most favorable light shines on Defendant's evidence, it ultimately resulted in no harm, as the parties’ agreed to have the property distributed by a Dominican court. And with respect to the claim that he is not the biological father of the parties’ children, contrary to the contention in Plaintiff's complaint, such a claim - where the children are now 16 and 18 years old - would clearly be subject to equitable estoppel (see e.g. Brian B. v Dionne B. , 267 AD2d 188, 188 [2d Dept 1999] ["The plaintiff will not be permitted to render the subject child illegitimate for the sole purpose of furthering his own self-interests five years after the judgment of divorce was entered and twelve years after the subject child was born"]).
Finally, with respect to the cause of action for constructive abandonment, Plaintiff failed to present any proof or even make an argument in support of this claim in his initial moving papers. Accordingly, vacatur of the default with respect to that claim would not be warranted, as the requisite showing of a meritorious claim has not been made.
Accordingly, Plaintiff's application to vacate the default is DENIED. The Defendant's counsel may submit a further affidavit for fees within 10 days of the entry of the order from this decision.
SUBMIT ORDER ON NOTICE 22 NYCRR 202.48 .