Alvarado v. Alvarado

• Decision Date: 24 July 2014
• Citation: 992 N.Y.S.2d 852,45 Misc.3d 412,2014 N.Y. Slip Op. 24203
• Court: New York Supreme Court
• Parties: Virginia ALVARADO, Plaintiff, v. Raymond A. ALVARADO, Defendant.

45 Misc.3d 412
992 N.Y.S.2d 852
2014 N.Y. Slip Op. 24203

Virginia ALVARADO, Plaintiff,
v.
Raymond A. ALVARADO, Defendant.

Supreme Court, Richmond County, New York.

July 24, 2014.

[992 N.Y.S.2d 853]

Eric Gansberg Esq., Staten Island, attorney for plaintiff.

Bruce Behrins Esq., Staten Island, attorney for defendant.

CATHERINE M. DiDOMENICO, J.

Upon the foregoing cited papers, the Decision and Order on this Application is as follows:

By Notice of Motion filed April 9, 2014 Defendant Husband seeks an Order: (1) vacating Plaintiff Wife's jury demand; (2) vacating Wife's demand for a Verified Bill of Particulars; (3) dismissing the affirmative defenses raised by Wife in her Reply to Husband's Counterclaim; (4) granting summary judgment on the issue of grounds and holding the judgment in abeyance until the issues of maintenance, equitable distribution, counsel fees, costs, and disbursements of this action have been resolved; (5) awarding Husband counsel fees; and (6) sanctioning Wife for delaying the disposition of this action.

By Jury Demand filed March 21, 2014 Wife seeks a jury trial on the issue of grounds. By Notice of Cross Motion filed June 3, 2014 Wife moves for an Order: (1) denying Husband's requested relief; (2) awarding Wife counsel fees in relation to the present motion; and (3) sanctioning Husband for bringing a frivolous motion.

Summary Judgment

Husband moves for summary judgment on the ground that the parties' marriage has broken down irretrievably for a period in excess of six months. Husband further seeks to hold the judgment inabeyance until the issues of maintenance, equitable distribution, counsel fees, costs, and disbursements have been resolved as required by statute. See DRL § 170(7).

Summary judgment may only be granted where there are no material or triable issues of fact. See Jablonski v. Rapalje, 14 A.D.3d 484, 788 N.Y.S.2d 158 (2d Dept.2005); See also CPLR § 3212.

[992 N.Y.S.2d 854]

When determining a Motion for Summary Judgment the evidence must be viewed in a light most favorable to the opposing party. See Corvino v. Mount Pleasant Cent. Sch. Dist., 305 A.D.2d 364, 757 N.Y.S.2d 896 (2d Dept.2003). Summary judgment may be granted on the issue of grounds for a divorce. See Wiecek v. Wiecek, 104 A.D.2d 935, 480 N.Y.S.2d 553 (2d Dept.1984).

As this action was commenced after October 12, 2010, the Court may grant a judgment of divorce if one party states under oath that the marriage has broken down irretrievably for a period of at least six months. See DRL § 170(7). ¹ No judgment of divorce may be granted under this ground until the ancillary issues of equitable distribution, child custody, visitation, counsel fees and expert fees have been resolved by the parties or by a judgment of divorce. See DRL § 170(7).

Here, Husband makes a sworn statement that the marriage has broken down irretrievably for a period of at least six months in his Affidavit in Support of the present motion, and in two separate Orders of this Court dated September 14, 2012. Husband further states in his Affidavit that there is “absolutely no chance of a reconciliation” and that the marriage has been over for years. Moreover, in Husband's Verified Answer and Counterclaim dated November 15, 2013 Husband swears that the marriage has been irretrievably broken since October 1, 2011. Under the statute, one party's sworn statement that the marriage has broken down irretrievably for a period of six months is sufficient to establish grounds. See Townes v. Coker, 35 Misc.3d 543, 943 N.Y.S.2d 823 (Sup.Ct., Nassau County 2012); See also Filstein v. Bromberg, 36 Misc. 3d 404, 944 N.Y.S.2d 692 (Sup.Ct., New York County 2012); See also DRL § 170(7).

While Wife claims that the marriage has not broken down irretrievably, and argues that this raises a triable question of fact, the Court hereby determines that Wife is judicially estopped from making this claim. The doctrine of judicial estoppel prevents a party from taking an adverse or inconsistent position on an issue simply because their interests have changed. See

Karasik v. Bird, 104 A.D.2d 758, 480 N.Y.S.2d 491 (1st Dept.1984); See also Anonymous v. Anonymous, 137 A.D.2d 739, 524 N.Y.S.2d 823 (2d Dept.1988); See also Tilles Inv. Co. v. Town of Oyster Bay, 207 A.D.2d 393, 615 N.Y.S.2d 895 (2d Dept.1994). Judicial estoppel is intended to avoid abuse of the judicial system by preventing a party from obtaining a benefit by taking one position and then asserting a contrary position in the same, or a subsequent proceeding. See D & L Holdings, LLC v. RCG Goldman Co. LLC., 287 A.D.2d 65, 734 N.Y.S.2d 25 (2d Dept.2001); See also Maas v. Cornell Univ., 253 A.D.2d 1, 683 N.Y.S.2d 634 (3rd Dept.1999).

Wife claims that the marriage has not broken down irretrievably for a period of six months. In support of this position, Wife argues that she is a religious Catholic and is opposed to divorce. However, in Wife's Verified Complaint dated June 26, 2012, Wife swore that the parties' marriage had broken down irretrievably for a period of at least six months prior to the commencement of the action. This sworn to admission was repeated and codified in two separate Consent Orders of this

[992 N.Y.S.2d 855]

Court dated September 14, 2012. The first of these Orders, the Preliminary Conference Order, states that the issue of...