Antony T. v Rosemarie B.T.
Annotate this CaseDecided on October 4, 2013
Supreme Court, Dutchess County
Antony T., Plaintiff,
against
Rosemarie B.T., Defendant.
1776/2011
BETTY J. POTENZA, ESQ.
Attorney for Plaintiff
P.O. Box 382
Highland, New York 12528
MICHAEL S. PASCAZI, ESQ.
PASCAZI LAW OFFICES, LLC
Attorneys for Defendant
1065 Main Street, Suite D
Fishkill, New York 12524
James D. Pagones, J.
Defendant moves for an order: (1) vacating the Note of Issue; (2) awarding her the sum of Two Thousand Five Hundred Forty-Three Dollars and Thirty-One Cents ($2,543.31) per month as interim maintenance; and (3) directing plaintiff to pay the sum of Twenty Thousand Dollars ($20,000.00) for interim counsel fees. Plaintiff moves for an order holding defendant in contempt for cancelling the homeowners' insurance on the premises owned by the parties, ***, Beacon, New York. Defendant cross-moves for an order awarding her Two Thousand Dollars ($2,000.00) for plaintiff's alleged frivolous conduct. Plaintiff moves for an order, pursuant to CPLR 3212, granting him summary judgment in the form a decree declaring that the April 28, 2000 marriage between the parties is void and dismissing the counterclaim for divorce. Plaintiff also seeks to preclude defendant from seeking maintenance.
The following papers were considered:
[*2]
Notice of Motion-Affirmation-Exhibits A-G-1-10
Affidavit of Service
Order to Show Cause-Affidavit-Affirmation-Exhibits11-26
A-K-Affidavits of Service (2)
Notice of Cross-Motion-Affirmation-Affidavit-Exhibit27—31
L-Affidavit of Service
Notice of Motion-Affidavit-Affirmation-Exhibits A-O32-49
Affidavit in Opposition-Affirmation-Affidavit of50-70
Service—Exhibits A-R
Affirmation in Opposition-Affidavit in Opposition-71-73
Affidavit of Service
Reply Affirmation-Reply Affidavit-Affidavit of74-77
Service-Case Law
Reply Affirmation-Reply Affidavit-Exhibit H-78-81
Affidavit of Service
Reply Affirmation-Affidavit of Service-Exhibits L-M82-85
Upon the foregoing papers the motions and order to show cause are decided as follows:
In the interest of judicial economy, the Court will first address plaintiff's motion for summary judgment.
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974). The movant must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).
New York allows a person to have solely one spouse at a time, thus, polygamy and bigamy are prohibited in New York (see 11 NY Prac, New York Law of Domestic Relations §9:5). DRL §6 states that where one of the parties has a living spouse from a prior marriage and that prior marriage was not dissolved by either an annulment, divorce, or pursuant to DRL § 220, the second marriage is void ab initio (id.).
The parties to this action were purportedly married in a civil ceremony on April 28, 2000 in the City of Beacon. Annexed to the motion papers as Exhibit "F" is a copy of the parties' marriage certificate indicating that Antony T. was married to Rosemarie F. on April 28, 2000. Upon the parties' application [*3]for a marriage license, defendant did not indicate that she was a party to a previous marriage. However, annexed as Exhibit "H," is a copy of a marriage certificate issued by the City Clerk of the City of New York which indicates that defendant was married to Robert A.T. on April 22, 1994. Robert A.T., who later changed his name to Mumin A.R., indicates that he is the former husband of Rosemarie F., he consented to an uncontested divorce action, filed by Rosemarie F. a/k/a Rosemarie T., in Kings County Supreme Court in 1999. He further indicates that a Judgment of Divorce was signed on May 24, 2000 and entered in the Kings County Clerk's Office on July 6, 2000. Plaintiff also annexes the pleadings from that Kings County action and the affidavit of defendant, wherein she admits that she married Robert A.T. a/k/a Mumin A.R. on April 22, 1994 in Queens County. The Judgment of Divorce was signed on May 24, 2000 by Justice Michael L. Pesce and is attached as Exhibit "M."
Plaintiff has established, prima facie, that defendant was still legally married to another man at the time of the parties' wedding and therefore the "marriage" of the parties on April 28, 2000 is void (see 11 NY Prac, New York Law of Domestic Relations §5:8; Landsman v. Landsman, 302 NY 45 [1950]; Lipschutz v. Kiderman, 76 AD3d 178 [2nd Dept 2010]). Moreover, plaintiff introduces evidence that defendant was remarried to Robert A.B. on February 14, 2002 and thus, plaintiff has established, prima facie, that defendant is precluded from seeking permanent maintenance (see DRL §236 [B][6][c]; Slagsvol v. Schneck, 213 AD2d 537 [2nd Dept 1995] appeal dismissed 85 NY2d 968).
Since plaintiff has made a prima facie showing of entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 NY2d 557 [1980]), defendant must show that genuine triable issues of material fact exist in order to defeat plaintiff's motion (id.).
In opposition to this motion, defendant fails to raise an issue of fact. Defendant alleges that plaintiff has not proven that he is absolved from paying spousal maintenance, merely because this is an action for annulment. As the Court has aforestated, plaintiff has established that defendant is not entitled to maintenance, as she remarried on February 14, 2002 (see DRL §236 [B][6][c]). Defendant also alleges that summary judgment is inappropriate as discovery remains outstanding. Counsel's mere hope and speculation that discovery might uncover evidence to raise a triable issue of fact, is insufficient to defeat a motion for summary judgment (see Ordonez v. Levy, 19 AD3d 385 [2nd Dept 2005]).
Based upon the foregoing, plaintiff's motion for summary judgment is granted in its entirety. This Court has found that the April 28, 2000 marriage between the parties is void, the [*4]counterclaim for divorce is dismissed and defendant is precluded from seeking maintenance.
In light of the above, the remaining motion, cross-motion and order to show cause are denied as academic.
This constitutes the decision and order of this Court.
Dated: Poughkeepsie, New York
October 4, 2013
ENTER
________________________________
HON. JAMES D. PAGONES, A.J.S.C.
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