Ackerman v. Ackerman
| Decision Date | 06 December 1977 |
| Parties | Frances ACKERMAN, Plaintiff-Respondent, v. Martin S. ACKERMAN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
E. J. Solomon, New York City, for plaintiff-respondent.
R. Layton, New York City, for defendant-appellant.
Before KUPFERMAN, J. P., and LUPIANO, SILVERMAN and LYNCH, JJ.
Order, Supreme Court, New York County, entered July 12, 1977, granting plaintiff's motion to discontinue the action without prejudice, and denying defendant's cross-motion to dismiss the action with prejudice, is unanimously affirmed, without costs, and without disbursements.
Plaintiff, former wife, has brought three actions against defendant (former husband) arising out of claimed breaches of the separation agreement between them, which apparently survived the divorce. The first action was instituted in New York in 1975, by a motion for summary judgment in lieu of complaint under CPLR § 3213. That motion was denied on June 25, 1975. The second action was instituted in California on March 10, 1976, apparently by attachment. The third action was instituted in England on or about December 22, 1976. Plaintiff contends that these repeated actions were necessary because of difficulties in obtaining jurisdiction over defendant and locating his property. On February 14, 1977, the California action was apparently dismissed pursuant to requests for dismissal signed (in somewhat confusing form) by the attorneys for the parties. In the meantime, the New York action has been wholly inactive. It appearing that the pendency of the New York action was forming the basis of some argument by defendant's attorney in the English court, plaintiff moved to discontinue the New York action without prejudice, and defendant cross moved to dismiss the New York action with prejudice. Special Term granted plaintiff's motion and denied defendant's motion.
The chief ground relied upon by defendant is that the dismissal of the California action was "with prejudice" and therefore res judicata, requiring dismissal on the merits of the New York action (and presumably of the English action). We expressly refrain from passing upon the validity of this contention as we see no useful purpose in doing so. The defense of res judicata is only useful if the plaintiff sues the defendant and then only in the action which the plaintiff prosecutes. Plaintiff does not wish to pursue the New York action. It will be...
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Ackerman v. Ackerman
...This is unnecessary. One judgment on the merits is all that is necessary to protect the parties' rights. Ackerman v. Ackerman, 60 A.D.2d 520, 521, 399 N.Y.S.2d 682, 683 (1977). Defendant's application for dismissal or stay of the English action, on the ground that the California action was ......
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Ackerman v. Ackerman
...was dismissed for failure to post the required bond for costs. California judgment was res judicata. Ackerman v. Ackerman, 60 A.D.2d 520, 521, 399 N.Y.S.2d 682, 683 (1st Dep't 1977). The husband's English motion was also denied and the High Court of Justice, Queen's Bench Division, The wife......