Chen v. Fischer

• Decision Date: 25 October 2004
• Docket Number: 2003-00397.
• Citation: 783 N.Y.S.2d 394,2004 NY Slip Op 07677,12 A.D.3d 43
• Parties: XIAO YANG CHEN, Appellant, v. IAN IRA FISCHER, Respondent.
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 43

783 N.Y.S.2d 394

2004 NY Slip Op 07677

XIAO YANG CHEN, Appellant, v. IAN IRA FISCHER, Respondent.

2003-00397.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 25, 2004.

Appeal from an order of the Supreme Court, Westchester County (Aldo A. Nastasi, J.), entered December 11, 2002. The order granted defendant's motion to dismiss the complaint on the ground of res judicata.

Paul Grobman, New York City, for appellant.

Bleakley Platt & Schmidt, White Plains (Robert D. Meade of counsel), for respondent.

OPINION OF THE COURT

LUCIANO, J.

This action brought by Xiao Yang Chen (hereinafter Chen) seeks to recover damages for personal injuries she allegedly sustained at the hands of her former husband, Ian Ira Fischer (hereinafter Fischer) during their marriage. The issue presented is whether the parties' judgment of divorce, dated May 8, 2002, bars Chen from maintaining this action, based on Fischer's tortious acts alleged to have occurred during the marriage.

The parties were married on March 11, 2001. On June 8, 2001, after 89 days of marriage, Fischer instituted an action for divorce against Chen, alleging as the ground therefor, cruel and inhuman treatment. In July 2001, Chen interposed counterclaims in the matrimonial action, also seeking a divorce on the ground of cruel and inhuman treatment, and additionally asserting a cause of action seeking damages for fraud.

On October 15, 2001, the parties entered into a stipulation settling their respective claims for divorce, pursuant to which each withdrew their allegations of cruel and inhuman treatment against the other, except for one relatively benign such allegation, with the result of a dual divorce being granted to the parties.

A trial ensued on the remaining issues, including equitable distribution and Chen's claim of fraud. On May 8, 2002, a reciprocal judgment of divorce was granted to both parties, on the ground of cruel and inhuman treatment. Chen's fraud cause of action was dismissed for failure of proof.

Prior to the granting of the reciprocal divorce, but subsequent to the parties' stipulation of settlement in the matrimonial action resolving the issue of fault and the commencement of the trial of the remaining issues in that action, Chen allegedly instituted the instant action on January 18, 2002, seeking to recover damages for personal injuries. The original pleadings in this action are not included in the record on appeal. Instead, the record contains Chen's second amended complaint, dated May 10, 2002, and Fischer's answer thereto.

Chen's second amended complaint asserts two causes of action, the first seeking to recover damages for intentional infliction of emotional distress, alleging, inter alia, that during the marriage Fischer repeatedly accused her of being unfaithful, threatened to lock her out of the marital home, refused to allow her to socialize with friends, physically and emotionally abused her for refusing to engage in sexual relations with him, referred to her as a slave and demanded subservience from her, and filed a false police report against her. The second cause of action seeks damages for assault and battery and alleges, inter alia, that Fischer slapped her on the face and ear.

Fischer's answer to the second amended complaint pleads, as an affirmative defense, inter alia, that the action is barred by res judicata, because Chen made substantially the same factual allegations in her counterclaim for divorce on the ground of cruel and inhuman treatment within the matrimonial action, and withdrew all but one of those allegations in the stipulation of settlement, without expressly reserving any rights to make those assertions in a later separate action.

The Supreme Court determined that Chen's personal injury action was barred by the doctrine of res judicata, more specifically claim preclusion, noting that the relief sought was predicated on virtually identical factual transactions that were at issue in the matrimonial action, and dismissed the complaint. We now affirm that determination.

In New York, spouses were not permitted to maintain tort actions against each other until 1937, when the Legislature abolished spousal immunity for torts. The statute is currently embodied in General Obligations Law § 3-313 (2), which provides, in pertinent part, as follows:

"A married woman has a right of action against her husband for his wrongful or tortious acts resulting to her in any personal injury . . . or resulting in injury to her property, as if they were unmarried, and she is liable to her husband for her wrongful or tortious acts resulting in any such personal injury to her husband or to his property, as if they were unmarried."

Despite the abolition of interspousal immunity for torts, New York does not recognize a cause of action to recover damages for intentional infliction of emotional distress between spouses such as the one asserted by Chen in her first cause of action against Fischer (see Weicker v Weicker, 22 NY2d 8, 11 [1968] ["strong policy considerations militate against" permitting recovery for intentional infliction of emotional distress in "the factual context of a dispute arising out of matrimonial differences"]; Nacson v Semmel, 292 AD2d 432 [2002]; Eller v Eller, 136 AD2d 678, 679 [1988]; Wiener v Wiener, 84 AD2d 814 [1981]). Chen's second amended complaint does, however, state a cause of action against Fischer to recover damages for assault and battery (see Kalra v Kalra, 149 AD2d 409 [1989]).

Pursuant to CPLR 601 (a), "[t]he plaintiff in a complaint or the defendant in an answer setting forth a counterclaim or cross-claim may join as many claims as he [or she] may have against an adverse party." Under this rule of permissive joinder, and because the Supreme Court has original jurisdiction empowering it to hear and resolve both legal and equitable claims, a spouse may join a tort claim with an action for divorce (see NY Const, art VI, § 7; Maharam v Maharam, 177 AD2d 262 [1991]).

We note, however, in Boronow v Boronow (71 NY2d 284, 286 [1988]), the Court of Appeals held that "a party to a concluded matrimonial action, who had a full and fair opportunity to contest title to the former marital home, is barred by res judicata principles from subsequently and separately reopening that issue." This view was considered consistent with the modern application of the doctrine of res judicata, which tempers the rule that joinder of claims is permissive by recognizing that all claims arising out of a transaction or occurrence are barred once any of them is actually litigated.

"In a matrimonial action, where the essential objective is to dissolve the marriage relationship, questions pertaining to important ancillary issues like title to marital property are certainly intertwined and constitute issues which generally can be fairly and efficiently resolved with the core issue. The courts and the parties should ordinarily be able to plan for the resolution of all issues relating to the marriage relationship in the single action . . . Fragmentation in this area would be particularly inappropriate and counterproductive . . . [A] continuation of the relationship and of the conflict among parties to a matrimonial litigation would be particularly perverse and the inevitable cloud on titles should also not be allowed to hang over the alienability of the property" (Boronow v Boronow, supra at 290-291).

It is clear, therefore, that interspousal tort actions relating to title to property, commenced subsequent to and separate from an action for divorce, are precluded by the doctrine of res judicata, on the theory that the issues could have been litigated in the prior divorce action between the parties (see Partlow v Kolupa, 69 NY2d 927 [1987] [subsequent action for conversion barred]; Scattoreggio v Scattoreggio, 115 AD2d 531 [1985]; Rakowski v Rakowski, 109 AD2d 1 [1985] [action to impose constructive trust]).

Societal needs, logic, and the desirability of bringing spousal litigation to finality now compel us to expand upon the rule espoused in these cases, and hold that an interspousal tort action seeking to recover damages for personal injuries commenced subsequent to, and separate from, an action for divorce is likewise barred by claim preclusion.

We are cognizant that, unlike the equitable nature of the division of marital property in a divorce action, the aims of a tort claim are the assignment of fault and the award of damages. Marital fault, however, is relevant in New York divorce actions, and, indeed is even relevant to the issue of equitable distribution in instances where it is found to be egregious enough to warrant its consideration (see Havell v Islam, 301 AD2d 339 [2002]). It is, therefore, reasonable to expect a spouse to assert a cause...