DECISION/ORDER The plaintiff moves for an order to restore this uncontested matrimonial action to the calendar and consolidate it with a Supreme Court Action pending in Bronx County entitled Emmanuel K. Erwiah v. Margaret Somiah Kwaw, index no, 302555/15. Upon consolidation the plaintiff requests that the alleged marital property located in Ghana be equitably distributed to the parties. The defendant cross moves for sanctions. The plaintiff was awarded an uncontested divorce in this action pursuant to a judgment signed on May 18, 2005. The judgment reflects that the defendant appeared in the proceeding and waived his right to answer. The complaint filed in April of 2005 asserts that the parties have divided up the marital property and no claim will be made by either party under equitable distribution. At the time the divorce judgment was signed the parties jointly owned a residence located at 1509 Commonwealth Ave, Bronx, NY. According to the plaintiff, the defendant agreed in writing in 2004 to sign over his interest in the property in exchange for one year of exclusive occupancy of the residence. After one year the defendant vacated the premises but failed to sign over his interest. Upon information and belief the defendant moved to Africa after he vacated the residence. In 2015 the defendant returned to the United States and commenced an action against the plaintiff to partition the marital residence. During the course of discovery in that action the defendant admitted that he owned a home in Ghana. The plaintiff alleges that the home was purchased with marital funds and is subject to equitable distribution. She claims she only learned of the existence of this property as a result of the deposition held in the partition action and seeks to open the uncontested divorce action to seek her equitable share. She now seeks consolidation of the Supreme Court action with the uncontested divorce proceeding which concluded in 2005. The defendant opposes the motion and argues that the plaintiff is now barred from seeking any equitable distribution. He argues that the plaintiff waived any right to equitable distribution in the uncontested divorce. Additionally, he argues that the statute of limitations bars the plaintiff from seeking to recover a portion of the value of the Ghana home. He contends that she has failed to demonstrate that the house in Ghana is marital property and that in any event this court is divested of jurisdiction over the property since it is located outside of the United States. At the outset the court rejects the defendant’s claim that this court lacks jurisdiction over the subject property because it is located in Ghana. Because this court has acquired in personam jurisdiction over the parties it also has equity jurisdiction over their rights with respect to foreign realty (Isaly v. Devlin, 139 A.D.3d 470). Thus the issue before the court is whether the plaintiff has sufficiently demonstrated that this matter should be re-opened to allow for equitable distribution of the subject property. The plaintiff alleges that the defendant deliberately misled and lied to her about the property in Ghana before the parties were divorced. She states that at some point during the marriage they took a home equity loan to purchase a home in Ghana. According to the affirmation submitted by plaintiff’s counsel the defendant informed the plaintiff that the home in Ghana was destroyed after its completion. This claim, however, is not contained in her affidavit in support of the motion. Rather, she claims in her affidavit that after her husband vacated the marital residence in the Bronx he disappeared and she could not move forward with settlement of the marital assets. It was only after the deposition held of the defendant in the partition action that she learned of the property he owned in Ghana. She argues that it is the very same property which the parties took out a loan for during the marriage. The defendant has failed to submit an affidavit in opposition to the motion. Instead the defendant’s attorney, who has no personal knowledge, has submitted an affirmation opposing the motion. He essentially argues three points in opposing the motion. First that the plaintiff waived her right to equitable distribution in this proceeding as evidenced by the complaint which includes a provision waiving equitable distribution. Second that the statute of limitations to reopen this case has expired. Third the plaintiff has not demonstrated that the property located in Ghana is marital property subject to equitable jurisdiction. Notably, counsel never affirmatively denies that the property is marital. Instead, he argues that the plaintiff has failed in her motion to definitively establish that the property is either owned by the defendant or that it was purchased with marital funds. Defendant argues that the plaintiff is relegated to a plenary action if she wishes to seek recovery with respect to the property. The defendant offers no precedent to support his claim that the statute of limitations has expired to seek the relief requested by the plaintiff. It may be that he cites no case to support this proposition because there is no basis to invoke the statute of limitations. The plaintiff is not attempting to enforce a judgment or separation agreement for which there would be applicable statutory periods to seek redress. It can be argued that her claim to equitable distribution rests on the alleged fraudulent claim that the defendant informed her that the property in Ghana had been destroyed. A claim for fraud must be commenced within the greater of six years from the date the cause of action accrued or two years from the time the plaintiff discovered the fraud or with reasonable diligence could have discovered it (CPLR §213(8); Marasa v. Andrews, 69 A.D.3d 584). In the instant case the plaintiff claims she only learned that the defendant owned property in Ghana during the deposition held in the partition action. Neither party has identified when that deposition occurred. The plaintiff only submits four pages of the transcript which does not identify the date of the deposition. If held within two years of the instant motion then the argument could be made that she only discovered the fraud at that time. The argument could also be made that the fraud occurred at the time he informed her that the property was destroyed. Neither of these arguments have been addressed by the parties. The court rejects the defendant’s assertion that the action is barred by the statute of limitations, since it is his burden to establish this defense. While this action may not be subject to the statute of limitations, the doctrine of laches may be viable. The defense of laches requires a party to demonstrate a delay in bringing an action and a showing of prejudice to the adverse party (Denaro v. Denaro, 84 A.D.3d 1148; Beiter v. Beiter, 67 A.D.3d 1415). There is no argument made by the defendant that he was prejudiced by the delay in bringing this motion. The mere passage of time without proof of prejudice is insufficient to establish laches (see., In re Barabash’s Estate 31 N.Y.2d 76). The defendant argues that the plaintiff waived any right to equitable distribution in this divorce action. The complaint states “The parties have divided up the marital property, and no claim will be made by either party under equitable distribution”. Similarly the affidavit of the plaintiff makes the exact same statement. A waiver is a voluntary relinquishment of a known right and should not be lightly presumed (Gilbert Frank Corp. v. Federal Insurance Co., 70 N.Y.2d 966). Plaintiff’s counsel contends that the plaintiff never intended to waive equitable distribution of property that she was not made aware of. He claims that the defendant never interposed an answer in this proceeding and that his client was not represented by counsel in the divorce. Both of these statements are false or misleading. The plaintiff was represented by counsel in the action and the defendant did not file an answer because he agreed not to contest the divorce. The judgment of divorce provides that the defendant did appear and waived his right to answer. It is difficult to conceive how the plaintiff conceded that equitable distribution was resolved when the issue of the marital home was never addressed. Although the plaintiff purports to have a notarized statement from the defendant that he would sign over his interest in the property, she went forward with the divorce without this issue being resolved. She claims that he disappeared and she had no knowledge of his whereabouts except to learn from her son that he moved to Ghana. It is clear that the court acquired jurisdiction over the defendant in this action and that the plaintiff could have requested the court to resolve the issue of equitable distribution at any time before the judgment was signed if in fact the defendant had simply vanished before the divorce was finalized. She was represented by counsel and either did not inform him of the marital home or simply wanted the divorce action ended. The plaintiff gives no valid reason as to why she failed to address the equitable distribution issue in this action. The claim that he moved away and she could not locate him is not convincing. The court had jurisdiction over the defendant as is evidenced by his waiver of an answer as opposed to a default. She had a written agreement from the defendant to transfer the marital home to her which he allegedly breached, and yet she still claimed in her complaint that there was no equitable distribution. It is clear she waived any claim for equitable distribution. In support of her claim for equitable distribution of the Ghana property the plaintiff has failed to submit any evidence that the property was purchased with marital funds or that the property allegedly owned by the defendant is the same property that was allegedly purchased during the marriage. She fails to include any proof of an equity loan taken during the marriage. She does not include a copy of a deed to the property. She does not state that she undertook any investigation of the property in Ghana to determine when it was purchased or who is on the title. The deposition testimony in the partition action reveals that he owns a home in Ghana. Specifically, when asked if he owned any property in Ghana his answer was “[A] family house”. He gave the address of the house and described it as a one family home with five bedrooms. There is no follow up question as to when the home was purchased or how it was purchased. There is no indication of what he meant by a family house. More than 15 years have elapsed since the entry of the divorce judgment. The plaintiff bears the burden on this motion to establish that there was some kind of fraud or inequity in rendering the judgment in this action. The plaintiff must come forward with something more than what she has provided in the instant motion in order to revive this uncontested divorce proceeding and in effect convert it to a contested proceeding. The plaintiff’s motion is therefore denied. In light of the court’s denial of this motion, that portion of the motion which seeks to consolidate the action for partition with this action is denied. The defendant’s cross motion for sanctions and costs is denied. The plaintiff’s motion is not frivolous. Accordingly the plaintiff’s motion to modify the judgment and consolidate this action is denied. The defendant’s cross motion for sanctions is also denied. This shall constitute the decision and order of the court. Dated: January 19, 2022
