Antony T. v Rosemarie B.T.

(2013 NY Slip Op 51615(U))

[*1]
Antony T. v Rosemarie B.T.

2013 NY Slip Op 51615(U) [41 Misc 3d 1208(A)]

Decided on October 4, 2013

Supreme Court, Dutchess County

Pagones, J.

Published by New York State Law Reporting

Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be

published in the printed Official Reports.

Decided on October 4, 2013

Supreme Court, Dutchess County

Antony T.,
Plaintiff,

against

Rosemarie B.T., Defendant.

1776/2011

BETTY J. POTENZA, ESQ.

Attorney for Plaintiff

P.O. Box 382

Highland, New York 12528

MICHAEL S. PASCAZI, ESQ.

PASCAZI LAW OFFICES, LLC

Attorneys for Defendant

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Antony T. v Rosemarie B.T. (2013 NY Slip Op 51615(U))
1065 Main Street, Suite D

Fishkill, New York 12524

James D. Pagones, J.

Defendant moves for an order: (1) vacating the Note of Issue; (2)
awarding her the sum of Two
Thousand Five Hundred Forty-Three Dollars and
Thirty-One Cents ($2,543.31) per month as interim
maintenance; and (3) directing
plaintiff to pay the sum of Twenty Thousand Dollars ($20,000.00) for
interim counsel
fees. Plaintiff moves for an order holding defendant in contempt for cancelling the
homeowners' insurance on the premises owned by the parties, ***, Beacon, New York.
Defendant
cross-moves for an order awarding her Two Thousand Dollars ($2,000.00) for
plaintiff's alleged
frivolous conduct. Plaintiff moves for an order, pursuant to CPLR
3212, granting him summary
judgment in the form a decree declaring that the April 28,
2000 marriage between the parties is void
and dismissing the counterclaim for divorce.
Plaintiff also seeks to preclude defendant from seeking
maintenance.

The following papers were considered:

[*2]

Notice of Motion-Affirmation-Exhibits
A-G-1-10

Affidavit of Service

Order to Show Cause-Affidavit-Affirmation-Exhibits11-26

A-K-Affidavits of Service (2)

Notice of Cross-Motion-Affirmation-Affidavit-Exhibit27—31

L-Affidavit of Service

Notice of Motion-Affidavit-Affirmation-Exhibits A-O32-49

Affidavit in Opposition-Affirmation-Affidavit of50-70

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Antony T. v Rosemarie B.T. (2013 NY Slip Op 51615(U))

Service—Exhibits A-R

Affirmation in Opposition-Affidavit in Opposition-71-73

Affidavit of Service

Reply Affirmation-Reply Affidavit-Affidavit of74-77

Service-Case Law

Reply Affirmation-Reply Affidavit-Exhibit H-78-81

Affidavit of Service

Reply Affirmation-Affidavit of Service-Exhibits L-M82-85

Upon the foregoing papers the motions and order to show cause are decided as
follows:

In the interest of judicial economy, the Court will first address plaintiff's motion for
summary
judgment.

On a motion for summary judgment, the test to be applied is whether triable issues of
fact exist
or whether on the proof submitted judgment can be granted to a party as a
matter of law (see Andre v.
Pomeroy, 35 NY2d 361 [1974). The movant must set
forth a prima facie showing of entitlement to
judgment as matter of law,
tendering sufficient evidence to demonstrate the absence of any material
issue of fact
(see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the movant sets
forth a
prima facie case, the burden of going forward shifts to the opponent of the
motion to produce
evidentiary proof in admissible form sufficient to establish the
existence of material issues of fact
(see Zuckerman v. City of New York, 49
NY2d 557 [1980]).

New York allows a person to have solely one spouse at a time, thus, polygamy and
bigamy are
prohibited in New York (see 11 NY Prac, New York Law of
Domestic Relations §9:5). DRL §6
states that where one of the parties has a
living spouse from a prior marriage and that prior marriage
was not dissolved by either
an annulment, divorce, or pursuant to DRL § 220, the second marriage is
void
ab initio (id.).

The parties to this action were purportedly married in a civil ceremony on April 28,
2000 in the
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Antony T. v Rosemarie B.T. (2013 NY Slip Op 51615(U))
City of Beacon. Annexed to the motion papers as Exhibit "F" is a copy of the
parties' marriage
certificate indicating that Antony T. was married to Rosemarie F. on
April 28, 2000. Upon the
parties' application [*3]for a
marriage license, defendant did not indicate that she was a party to a
previous marriage.
However, annexed as Exhibit "H," is a copy of a marriage certificate issued by the
City
Clerk of the City of New York which indicates that defendant was married to Robert
A.T. on
April 22, 1994. Robert A.T., who later changed his name to Mumin A.R.,
indicates that he is the
former husband of Rosemarie F., he consented to an uncontested
divorce action, filed by Rosemarie
F. a/k/a Rosemarie T., in Kings County Supreme
Court in 1999. He further indicates that a Judgment
of Divorce was signed on May 24,
2000 and entered in the Kings County Clerk's Office on July 6,
2000. Plaintiff also
annexes the pleadings from that Kings County action and the affidavit of
defendant,
wherein she admits that she married Robert A.T. a/k/a Mumin A.R. on April 22, 1994 in
Queens County. The Judgment of Divorce was signed on May 24, 2000 by Justice
Michael L. Pesce
and is attached as Exhibit "M."

Plaintiff has established, prima facie, that defendant was still legally married
to another man at
the time of the parties' wedding and therefore the "marriage" of the
parties on April 28, 2000 is void
(see 11 NY Prac, New York Law of Domestic
Relations §5:8; Landsman v. Landsman, 302 NY 45
[1950]; Lipschutz v. Kiderman, 76
AD3d 178 [2nd Dept 2010]). Moreover, plaintiff introduces
evidence that defendant
was remarried to Robert A.B. on February 14, 2002 and thus, plaintiff has
established,
prima facie, that defendant is precluded from seeking permanent maintenance
(see DRL
§236 [B][6][c]; Slagsvol v. Schneck, 213 AD2d 537 [2nd
Dept 1995] appeal dismissed 85 NY2d
968).

Since plaintiff has made a prima facie showing of entitlement to judgment as

a matter of law
(see Zuckerman v. City of New York, 49 NY2d 557 [1980]),
defendant must show that genuine triable
issues of material fact exist in order to defeat
plaintiff's motion (id.).

In opposition to this motion, defendant fails to raise an issue of fact. Defendant

alleges that
plaintiff has not proven that he is absolved from paying spousal maintenance,
merely because this is
an action for annulment. As the Court has aforestated, plaintiff has
established that defendant is not
entitled to maintenance, as she remarried on February
14, 2002 (see DRL §236 [B][6][c]). Defendant
also alleges that summary
judgment is inappropriate as discovery remains outstanding. Counsel's
mere hope and
speculation that discovery might uncover evidence to raise a triable issue of fact, is
insufficient to defeat a motion for summary judgment (see Ordonez v. Levy, 19 AD3d
385 [2nd Dept
2005]).

Based upon the foregoing, plaintiff's motion for summary judgment is granted in its
entirety.
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Antony T. v Rosemarie B.T. (2013 NY Slip Op 51615(U))
This Court has found that the April 28, 2000 marriage between the parties is
void, the
[*4]counterclaim for divorce is dismissed and
defendant is precluded from seeking maintenance.

In light of the above, the remaining motion, cross-motion and order to show cause
are denied as
academic.

This constitutes the decision and order of this Court.

Dated: Poughkeepsie, New York

October 4, 2013

ENTER

________________________________

HON. JAMES D. PAGONES, A.J.S.C.

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