A.P. v A.J.R.P.
Annotate this CaseDecided on January 28, 2020
Supreme Court, Nassau County
A.P., Plaintiff,
against
A.J.R.P., Defendant.
201715/2019
Elliot Schlissel, Esq., Law Offices of Schlissel DeCorpo, attorneys for Plaintiff/Husband: telephone: 516-561-6645; email: schlissel.law@att.net
Iris Horowitz, Esq., The Law Office of Iris Horowitz, attorneys for Defendant/Wife: telephone 516-227-2140; email: ihorowitz@irislaw.com
Helen Voutsinas, J.
Papers submitted:
Defendant's Order to Show Cause dated October 7, 2019,
Affidavit and Affirmation in Support X
Plaintiff's Affidavit and Affirmation in Opposition X
Defendant's Reply Affidavit and Affirmation X
Defendant/Wife, A.J.R.P., moves the Court by Order to Show Cause dated October 7, 2019, for an order granting the following relief:
(A) Dismissing Plaintiff's Cause of Action for Annulment for failure to state a cause of action upon which relief can be granted;(B) An extension of time for Defendant to serve a Verified Answer and Counterclaim if the Court does not dismiss Plaintiff's Cause of Action for Annulment;(C) Alternatively, an extension of time for Defendant to serve a Verified Answer and Counterclaim to Plaintiff's Cause of Action for Divorce if the Court does not dismiss Plaintiff's Cause of Action for Annulment;(D) Court fees and disbursements to bring this motion; and(E) Such other and further relief as the court may deem just and proper.Plaintiff/Husband, A.P., opposes Defendant's requested relief.
Background/History
The parties were married on or about August 26, 2018, and there are no children of the marriage. This action for a divorce was commenced on or about July 24, 2019. Defendant is a citizen of Venezuela, and is in the United States under a B1/B2 visa which was issued on January 13, 2015 and expires on January 12, 2025.
The parties had been living together in an apartment at 123 B.A., Amityville, New York from the date of their marriage, until March 10, 2019. On that date, there was a domestic violence incident resulting in Plaintiff's arrest for allegedly assaulting Defendant and her sister. A temporary order of protection was issued in favor of Defendant and against Plaintiff by the Amityville Village Court, and Plaintiff vacated the residence on that date. An updated temporary order of protection was issued on September 24, 2019.
Plaintiff's complaint contains a first cause of action for annulment, based upon fraud in the inducement, and a second cause of action for divorce, based upon irretrievable breakdown of the relationship for a period of at least six (6) months.
In connection with the annulment cause of action, Plaintiff makes the following allegations in his complaint:
TENTH: Prior to the party's marriage, the Defendant made false representations to the Plaintiff to induce him to marry her, for the sole purpose of her remaining in the United States of America ["US"] and obtaining a Lawful Permanent Resident Card, commonly known as a "Green Card". Specifically, while a non-resident alien, the Defendant falsely informed the Plaintiff she was a US citizen.
ELEVENTH: The Plaintiff relied on the Defendant's representation of her legal citizenship status when he agreed to marry her, and would not have married the Defendant if he knew she was not a legal US citizen.
TWELFTH: After the parties married, the Plaintiff ascertained that the Defendant was not in the United States legally. Upon the Plaintiff discovering the facts constituting the Defendant's fraud, the parties ceased cohabiting as husband and wife.
Defendant moves to dismiss Plaintiff's cause of action for annulment for failure to state a cause of action, pursuant to CPLR 3211[a][7]. Defendant asserts that Plaintiff's allegations in paragraphs "TENTH" through "TWELFTH" of his complaint are false. She contends that she had never represented herself to be a citizen of the United States to him. Defendant claims that at all times prior to the marriage, beginning when they first met in January 2016, while she was in the United States on vacation, until their marriage on August 26, 2018, she always represented to Plaintiff that she was a citizen of Venezuela.
Defendant also contends that Plaintiff had seen her Venezuelan passport long before they were married. She states that after the parties met in January 2016, she returned home to Venezuela. In late February, 2016, the parties arranged to meet for a vacation in the Dominican Republic. Plaintiff purchased the airline tickets, he needed Defendant's passport information in order to do so, and Defendant sent him a copy of her passport. Defendant avers that Plaintiff clearly knew that she was a Venezuelan citizen, as her passport was from Venezuela and [*2]indicated her citizenship as Venezuelan.
Defendant asserts that she came back to New York in March 2018 for a vacation, having purchased round trip tickets, intending to stay only a few weeks. Plaintiff picked her up at the airport and the parties stayed together. She did not use her return ticket alleging Plaintiff wanted her to stay and live with him. Plaintiff asked her to marry him in July 2018, and she accepted.
Defendant also avers that when the parties went together to obtain their marriage license she had to present her Venezuelan passport to the clerk, further showing that Plaintiff was aware of her status as a citizen of Venezuela.
Defendant states that in October 2018, Plaintiff submitted a I-130 petition to Department of Homeland Security Immigration Services for Defendant to obtain a Lawful Permanent Resident Card. The parties continued to live together at 123 B.A., Amityville, New York for many months thereafter, until the March 10, 2019 domestic violence incident.
Defendant argues that Plaintiff's cause of action for annulment must be dismissed on two (2) grounds. First, she alleges that she never represented to Plaintiff that she was a US citizen and that Plaintiff was always aware that she was not a US citizen. Secondly, she argues that, even if she had falsely represented her status to him (which she vehemently denies), the parties cohabited together for many months after his submitting on her behalf a I-130 Petition for Alien Relative to the Department of Homeland Security, US Citizenship and Immigration Services.
In opposition, Plaintiff argues that he has successfully pled his cause of action for annulment based upon the alleged premarital representations of Defendant and upon which Plaintiff claims to have relied upon.
Plaintiff argues that on a motion to dismiss pursuant to CPLR 3211[a][7], the Court must accept the facts alleged in the complaint as true, and accord Plaintiff every possible inference and determine only whether the facts alleged fit within a cognizable legal theory.
Plaintiff also disputes various statements made by Defendant as to her description of their relationship and how it progressed. He also avers in his affidavit that Defendant made false allegations of domestic violence in order to obtain an order of protection and have him thrown out of his home, and then invited her family and friends to come and live in the apartment. It is notable, however, that Plaintiff does not deny Defendant's statements pertaining to his retaining an immigration attorney for her or his submitting on her behalf, in October 2018, a I-130 Petition for Alien Relative to the Department of Homeland Security, US Citizenship and Immigration Services, or that the parties continued to live together thereafter until March 10, 2019.
Plaintiff also makes the following statements in his affidavit in opposition:
5. The Defendant came to the United States on a visa. It was necessary to marry me when her visa expired. . . .. . . .10. In paragraph 17 of Defendant's affidavit she alleges she came to New York for a two week vacation. This is a lie. She told me that she was here on a 6 month vacation visa which was to expire on August 26. She needed to marry me.11. A week before her visa expired she demanded that I marry her. There was no engagement and no honeymoon.In reply, Defendant repeats her arguments and further contends that Plaintiff's own statements contradict the allegations set forth in his complaint, and further establish that Plaintiff cannot maintain a cause of action for annulment. Defendant also provides a copy of a final order of protection issued against Plaintiff and in favor Defendant by the Amityville Village Court on [*3]November 26, 2019, which expires on November 26, 2021.
Discussion/Ruling
Domestic Relations Law §140 provides, in relevant part:
Action for judgment declaring nullity of void marriages or annulling voidable marriage. . . .[e] Consent by force, duress or fraud. . . . An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by fraud may be maintained by the party whose consent was so obtained. . . . But a marriage shall not be annulled. . . on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.Upon a motion to dismiss for failure to state a cause of action under CPLR 3211[a][7], the court must determine whether from the four corners of the pleading "factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Morad v Morad, 27 AD3d 626, 627 [2d Dept 2006]). The pleading is to be afforded a liberal construction, the facts alleged in the complaint accepted as true, and the Plaintiff accorded the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). However, "[w]hile the allegations in the complaint are to be accepted as true when considering a motion to dismiss . . . , 'allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration' " (Garber v Board of Trustees of State Univ. of NY, 38 AD3d 833, 834 [2d Dept 2007], quoting Maas v Cornell Univ., 94 NY2d 87, 91 [1999]).
Where the complaint identifies a cognizable cause of action, pleads all of the material elements of it, and contains sufficient factual allegations supporting those elements, but the Plaintiff's submissions in opposition to the motion to dismiss convincingly refute a material allegation in the complaint, dismissal pursuant to CPLR 3211[a][7] is appropriate. (See M & B Joint Venture, Inc. v. Laurus Master Fund, Ltd., 12 NY3d 798 [2009]("Because Plaintiff's own evidentiary submissions 'conclusively establish that it has no cause of action,' dismissal of the complaint as to [certain Defendants] is appropriate," quoting Rovello v. Orofino Realty Co., 40 NY2d 633, 636 [1976]) (internal brackets omitted)).
In this case, the submissions by both parties establish that Plaintiff cannot maintain a cause of action for annulment under Domestic Relations Law §140[e]. The allegations of fraud set forth in Plaintiff's complaint — that Defendant represented that she was a US citizen, that Plaintiff relied on Defendant's representation of her legal citizenship status when he agreed to marry her, and that he would not have married her if he knew she was not a legal US citizen — are belied by Plaintiff's own statements in his affidavit in opposition to Defendant's motion. In his affidavit, Plaintiff avers that Defendant told him that she was in the United States on a six (6) month vacation visa which was to expire on August 26, 2018 and that she needed to marry him; and that a week before her visa expired she demanded that Plaintiff marry her.
In addition, a cause of action for annulment under Domestic Relations Law §140[e] will not lie if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud. Here, Defendant has submitted documentary evidence showing that Plaintiff filed on Defendant's behalf, in October 2018, a I-130 Petition for Alien Relative to the Department of Homeland [*4]Security, US Citizenship and Immigration Services, and that the parties continued to live together thereafter until March 10, 2019, when an order of protection was issued against Plaintiff. In his affidavit in opposition, Plaintiff does not refute this. The Court finds that, at the latest, Plaintiff was aware that Defendant was not a US citizen as of October 2018, yet he continued to live with her until March 10, 2019. Accordingly, even if Defendant had misrepresented her citizenship status to Plaintiff prior to the marriage, and Plaintiff became aware of her status only in October, 2018, the annulment cause of action still fails because the parties continued to live together thereafter and until March 10, 2019.
Based upon all of the foregoing, Defendant's motion to dismiss Plaintiff's first cause of action for annulment, is GRANTED.
Defendant is directed to serve and file an answer to Plaintiff's complaint, if she has not already done so, within twenty (20) days of the date of this decision.
Defendant's request for the disbursements incurred in connection with making this motion, totaling $140.00 ($45.00 for the motion fee, $95.00 for the RJI fee), is GRANTED.
Any other relief sought herein not specifically ruled upon is DENIED.
This constitutes the decision and order of the Court.
Dated: January 28, 2020
Mineola, NY
______________________________
Helen Voutsinas
Justice of the Supreme Court
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