Recitation, as required by CPLR §2219(a), of the papers considered in the review of the motion as indicated below: Papers Numbered Notice of Motion, Affirmation in Support & Exhibits 1 Affirmation in Opposition & Exhibits 2 Affirmation in Reply & Exhibits 3 DECISION/ORDER The defendant moves in this divorce action for an order pursuant to CPLR section 3211(a)(S) dismissing the action on the grounds of res judicata. In the instant action the defendant claims that the parties were divorced in Peru and that this action is barred. The plaintiff opposes the motion and argues that the parties were married twice in Peru and the divorce dissolved only one of their marriages. The parties were initially married in Peru on November 22, 1986 (hereinafter “first marriage”). Subsequently they married again on September 24, 1990 (hereinafter “second marriage”). In October 2014, the parties gave the plaintiff’s sister, Carmen Rosa Escobedo Granados De Puell, (hereinafter “Escobedo”) a power of attorney. The power of attorney granted her the power to “initiate and participate in all types of procedure of divorce” as well as to specifically annul the second marriage. The plaintiff claims that the parties intended for Escobedo to dissolve the second marriage and did not know the reason the first marriage was dissolved. The instant action was commenced on September 04, 2018. The first marriage was dissolved, and a divorce was granted in Peru on or about November 23, 2018. The defendant argues that he gave his sister in-law the authority to represent him in a separate property dispute in Peru and to have the second marriage annulled. He contends that the plaintiff waived spousal maintenance and had the opportunity to address equitable distribution in the Peruvian divorce but failed to do so. He claims that even if the first marriage was erroneously dissolved the plaintiff is barred from relitigating the divorce under the doctrine of res judicata (see, Deposit Bank v. Frankfort, 191 U.S. 499, 510-511; Kiker v. Hefner, 409 F,2d 1067, 1068-69). He also argues that under the doctrine of comity, the courts of the State of New York generally recognize foreign judgments (Greschler v. Greschler, 51 NY2d 368, 376 [1980]) and a collateral proceeding can only be brought when there is a showing that the foreign judgment was fraudulently obtained (see, Tamini v. Tamini, 38 AD2d 197 [2001]), or that recognition of the judgment would conflict seriously with a compelling public policy (see, Mertz v. Mertz, 271 NY 466 [1936]; Greschler at 376). In opposition, the plaintiff argues that the parties are still married since their second marriage was not dissolved or annulled. She claims that the parties intended to have the second marriage annulled and to continue the first marriage. She states that the parties did not have notice of the divorce proceeding for their first marriage. The plaintiff contends that the doctrine of res judicata should not be applied because the parties were unaware and unable to assert any claims of equitable distribution. She annexed an affirmation from her attorney in Peru, Moises Goldez-Cortijo, where he states that the parties are still legally married based on their September 24, 1990 marriage. New York will generally recognize judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister states (see, Greschler at 376). The doctrine of comity will be applied unless there is a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York ( see; Matter of Gotlib v. Ratsutsky, 83 NY2d 696 [1994]; Greschler, at 376; Farag v. Farag, 4 Ad3d 502 [2004]). The doctrine of res judicata encompasses the aspects of claim preclusion and issue preclusion (see Rojas v. Romanoff, 186 AD3d103 [ 2020] ). Claim preclusion, the primary aspect, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties (O’Brien v. City of Syracuse, 54 NY2d 353 [1981], Lodal Inc. v. Home Ins. Co., 309AD2d 634 [2003]). The secondary aspect of issue preclusion, historically called collateral estoppel, pertains to the bar on relitigating issues that were argued and decided in the first suit (Buechel v. Bain, 97 NY2d 303 [2001]). New York will recognize a marriage if it is valid where it was consummated (see Van Voorhis v. Brintnall, 86 NY 18). This general rule does not apply where recognition of a marriage is repugnant to public policy (see People v. Ezeonu, 155 Misc2d 344 [1992]). Moreover, DRL §8 provides that “Whenever, and whether prior or subsequent to September first, nineteen hundred sixty-seven, a marriage has been dissolved by divorce, either may marry again.” This court recognizes the judgment of divorce of the first marriage under the doctrine of comity. The plaintiff’s self-serving affidavit failed to demonstrate that the divorce obtained in Peru was a result of fraud. Moreover, she has failed to demonstrate that recognition of the judgment of divorce would be violative of a strong public policy in New York. Although this court may recognize the divorce in the first marriage, any equitable distribution sought in this action by the plaintiff is barred by res judicata. The relief she is seeking should have been sought in the divorce proceeding in Peru. The parties’ second marriage is also not recognized in New York as the parties failed to obtain a divorce in their first marriage prior to entering into a second marriage (see DRI §8). The parties allege that in Peru, a person can consummate a second marriage without obtaining a divorce from the first marriage. Although this may be legal in Peru, it is against public policy in New York since they failed to first obtain a divorce in their first marriage prior to marrying the second time. The plaintiff is unable to maintain this proceeding to dissolve the second marriage because the second marriage is void and not recognized as valid under New York law. The motion is granted on the basis that the plaintiff cannot seek financial relief for the first marriage as her claims are barred by res judicata. This court does not recognize the second marriage as it is void against public policy and the plaintiff is therefore precluded from seeking any financial relief for that marriage as well. The court notes that the procedural posture of the case is troubling. The plaintiff only filed and served a summons with notice. It is unclear how the defendant is moving to dismiss the action without being served a complaint. The summons with notice does not indicate which marriage the plaintiff is attempting to dissolve. Based on the foregoing, it is hereby: ORDERED AND ADJUDGED, that the defendant’s motion is granted to the extent of dismissing any claims for equitable distribution and any fees connected with this divorce. She may proceed to seek entry of the foreign judgment of divorce. However, there is a strong public policy in New York that a divorcing individual not become a public charge. As such, if applicable, the plaintiff may seek maintenance from the defendant in this proceeding. The plaintiff is directed to file a verified complaint within thirty (30) days of Notice of Entry, it is further, ORDERED AND ADJUDGED, that the defendant serve a copy of this Order with Notice of Entry upon the plaintiff within twenty (20) days from the date of entry. This constitutes the decision and order of the court. Dated: December 22, 2020
