Marinelli v. Marinelli

88 A.D.2d 635, 450 N.Y.S.2d 229, 1982 N.Y. App. Div. LEXIS 16850

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 1982
• Status: Published

Opinion

— In an action, inter alia, to recover for moneys expended on necessaries, the plaintiff wife appeals from an order of the Supreme Court, Kings County (Composto, J.), entered May 22,1981, which granted the defendant husband’s motion to dismiss the complaint. Order affirmed, without costs or disbursements. In August, 1978 the husband commenced an action for divorce in the Supreme Court, Nassau County. Following the interposition of an answer and counterclaim by the wife, the action proceeded to trial and, in April, 1981, a judgment of divorce was entered (see Marinelli v Marinelli, 88 AD2d 635). The judgment dissolved the marriage because of the husband’s abandonment, awarded the wife custody of the couple’s only infant issue (born July 18,1977), ■ provided for visitation by the husband, directed the husband to pay $100 per week as child support, directed entry of a money judgment against the wife and in favor of the husband in the amount of $5,759.69 (arising from certain bank accounts of the parties), awarded the wife exclusive possession of the marital residence until such time as the husband commenced a partition action, denied alimony to the wife and denied her request for a counsel fee. The wife' commenced the instant action in January, 1981, (1) to obtain reimbursement for necessaries paid for by her, for herself and the infant from the time the husband left the marital home in May, 1978, (2) for a judgment representing one half of the proceeds of a particular joint savings account, (3) to impress a constructive trust on one half of the family car, which vehicle the husband had taken upon his departure from the family home, and (4) to impress a constructive trust on one half of the proceeds of certain life insurance and annuity policies surrendered by the husband. Special Term, citing Schuylkill Fuel Corp. v Nieberg Realty Corp. (250 NY 304, 306-307), Drago v Buller (60 AD2d 518), Cowan & Co. v National Bank of North Amer. (64 AD2d 603) and Kaufmann v Terr (74 AD2d 840), dismissed the complaint on the ground that the causes of action were barred by res judicata because they could have been litigated in the matrimonial action. On this appeal, the wife argues that the husband has a duty to provide for necessaries, that the joint bank account was different from the accounts which had been scrutinized in the matrimonial action and that the family car and the insurance and annuity policies had not been considered in that action. The husband, aside from asserting res judicata, argues that the second cause of action sounds in conversion and is barred by the three-year Statute of Limitations. We have reviewed the records in this matter and in the matrimonial action. There is no reason why the issues raised in the instant action could not have been raised by the wife in that action. As Special Term concluded: “Here, the parties had the opportunity to have all of their marital disputes resolved as an incident to, and as part of, their divorce action. That was the appropriate forum within which to properly adjudicate the marital property and financial matters of the type being raised herein, and the parties had the right to expect that any such matters not there considered were not going to be litigated. The [wife’s] subsequent commencement of this separate unrelated plenary action outside of the matrimonial framework seriously impairs this right and cannot be sanctioned.” (Cf. Smith v Russell Sage Coll., 54 NY2d 185.) We also hold that the second cause of action is time barred by the three-year limitations period in CPLR 214. Mollen, P. J., Weinstein, Gulotta and Thompson, JJ., concur.