Bofinger v. Bofinger

• Decision Date: 26 January 1981
• Citation: 435 N.Y.S.2d 652,107 Misc.2d 573
• Parties: William J. BOFINGER, Plaintiff, v. Maureen BOFINGER, Defendant.
• Court: New York Supreme Court

Page 652

435 N.Y.S.2d 652

107 Misc.2d 573

William J. BOFINGER, Plaintiff, v. Maureen BOFINGER, Defendant.

Supreme Court, Special Term, Suffolk County, Part V.

Jan. 26, 1981.

Vincent J. Hand, Bay Shore, for plaintiff.

Goldstein & Rubinton, Peter D. Rubinton, Huntington, for defendant.

OSCAR MUROV, Judge.

This is a motion for an order dismissing an action commenced by a wife for a divorce on the ground that at the time said action was commenced there was another action pending between the two parties (CPLR § 3211(a)(4)). The wife submits that there should be a joint trial (CPLR § 602(a)).

The husband's action was commenced on July 14, 1980, five days prior to the effective date of the New Equitable Distribution Law (L.1980, ch. 281). The summons served on the wife contained, on its face, the proper notice, reciting as grounds "cruel and inhuman treatment", and the relief sought, "custody of the infant children" and "exclusive use of the marital abode." The wife appeared by counsel in this action on July 22, 1980. Eight days later and on July 30, 1980, the wife commenced a separate action for divorce "and/or separation." The grounds set forth on the face of said summons with notice were "abandonment and cruel and inhuman treatment." Among the ancillary relief requested is "equitable distribution, or in the alternative a distributive share of the marital property." The wife served her complaint on August 29, 1980 and husband served his complaint on September 12, 1980. Each party served an answer to the other's complaint within a matter of days.

The question presented by this motion is common enough during this period of transition in matrimonial Law: May a defendant who was served with a summons for divorce during a period of time when the "old law" governed, institute a new action in order to avail herself of the Equitable Distribution rights granted under the new DRL § 236-B. Under the facts of this case, the court answers the question in the affirmative.

So far, most commonly with the passage of the Equitable Distribution Law in New York State, questions of procedure have arisen with the courts having been asked to decide whether or not a party who commenced an action for divorce under the "old law", will be faced with a situation where his action will be governed by the "new law." The Justices of the Supreme Court of this state have grappled with that question and have rendered well reasoned decisions on all sides with varying results (see Deschamps v. Deschamps, 103 Misc.2d 678, 430 N.Y.S.2d 966 (Sup.Ct., Nassau Co. 1980); Cooper v. Cooper, 103 Misc.2d 689, 430 N.Y.S.2d 998 (Sup.Ct., Westchester Co. 1980); Goding v. Goding, 431 N.Y.S.2d 797 (Sup.Ct., Nassau Co., 1980); Badeer v. Badeer, N.Y.L.J., Sep. 10, 1980 (Sup.Ct., Suff. Co., Jaspan, J.); Malley v. Malley, N.Y.L.J., Sep. 19, 1980, p. 14, col. 1, (Sup.Ct., Nassau Co., Murphy, J.); Green v. Green, N.Y.L.J., Sep. 25, 1980, p. 18, col. 1, Sup.Ct., Suff. Co., Aspland, J.); Sapone v. Sapone, N.Y.L.J., Sep. 25, 1980, p. 18, col. 2, (Sup.Ct., Suff. Co., McCarthy, J.); Miller v. Miller, N.Y.L.J., Dec. 24, 1980, p. 15, col. 5, (Sup.Ct., Suff. Co., Baisley, J.); Moss v. Moss, N.Y.L.J., Jan. 13, 1981, p. 13, col. 1, (Sup.Ct., Queens Co., Lonschein, J.). This case, however, represents a novel question as to whether a spouse can be forced to bring a cause of action under the "old law" merely because the other spouse has commenced a separate cause of action for alleged claims against him prior to July 19, 1980.

The dismissal of a complaint asserting legally valid claims of a wife against her husband is not proper on the grounds of "another action pending ... for the same cause of action" merely because the husband had previously commenced his action asserting his claims against the wife. Clearly CPLR 3211(a)(4) indicates that it was not intended to be applied to situations where the acts of wrongdoing alleged in one action are different from those alleged in the other. Clearly CPLR 3211(a)(4) was designed to prevent a party from repeated law suits of the same defendant. Thus, if only the legal basis varies, the "cause of action" for the purposes of CPLR 3211(a)(4) may very well be the same. However, if the relief claimed is different or the factual basis thereunder is different, a motion to dismiss under CPLR 3211(a)(4) ought not to be permitted. As noted by David Siegel in the Practice Commentaries, (New York Civil Practice 3211, Volume 7B, McKinneys 1970, Siegel Practice Commentary C3211:15, p. 24):

"It need not be shown that they pursue the same theories. A plaintiff cannot unreasonably burden a defendant with a series of suits eminating from a single wrong, merely by basing each suit on a different theory occurring. The criteria should involve a two-pronged inquiry: (1) do both suits arise out of the same actionable wrong or a series of wrongs? and (2) As a practical matter is there any good reason for two actions rather than one being brought in seeking the remedy?"

In this case, the first question must be answered in the negative and the second in the affirmative. Clearly, there is no requirement that a party must sue on all claims that they may have against each other once a party has commenced a law suit as similarly noted by Prof. David Siegel and until a matter goes to judgment the party is not bound by any action (see, National Fire Insurance Co. v. Hughes, 189 N.Y. 84, 81 N.E. 562 (1907)). In that case, the court held that the pendency of a first action between the same parties and a second action involving the same parties and though related to the same subject matter in the first and second action does not bar the pendency of the second action. Thus, even where both causes of action may arise out of the same occurrence, where the relief requested is different, more than one action can obviously be maintained. (Kent Development Co., Inc. et al v. Liccion, 37 N.Y.2d 899, 378 N.Y.S.2d 377, 340 N.E.2d 740 (1975)).

In the case at bar, both parties have asserted bona fide causes of action and clearly the most reasonable method for proceeding with the resolution of both parties' claims against each other is a joint trial (CPLR 602) with no necessity for the actions being tried separately even though different since a trial court is capable of resolving the differences in the application of the law with a final solution to any permutation the proof might develop. Moreover, were the husband in any event to prove his case, the court can obviously deny alimony to the wife without reference to distribution of property and any distributive award. Indeed, one of the questions posed by the New Equitable Distribution Law is whether marital fault by either spouse will preclude an award or maintenance, whether temporary or permanent, and, since this court sits as a court of equity, a party may...