Brandt v. Brandt

149 A.D.2d 646, 540 N.Y.S.2d 461, 1989 N.Y. App. Div. LEXIS 5334

Opinion

— In an action for a divorce and ancillary relief, the defendant husband appeals from an order of the Supreme Court, Kings County (Rigler, J.), dated January 6, 1988, which denied his motion for summary judgment dismissing the complaint, and granted the plaintiff wife leave to serve an amended complaint.

Ordered, that the order is affirmed, with costs, and the plaintiff’s time to serve an amended complaint is extended until 20 days after service upon her of a copy of this decision and order, with notice of entry.

The defendant claims that his marriage to the plaintiff was void ab initio because he was never divorced from a prior spouse, and that the plaintiff therefore has no right to the equitable distribution of marital property pursuant to Domestic Relations Law § 236 (B). This argument has no merit. This court has recently held that equitable distribution is available in these circumstances (see, DeLyra v DeLyra, 141 AD2d 75; see also, Lobotsky v Lobotsky, 122 AD2d 253, 254). Therefore, the Supreme Court, Kings County, properly denied the defendant’s motion, and properly permitted the plaintiff to amend her complaint to add a demand for a declaration that her marriage to the defendant is void. Thompson, J. P., Bracken, Brown and Harwood, JJ., concur.