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[*1]
Antony T. v Rosemarie B.T.
Pagones, J.
Antony T.,
Plaintiff,
against
1776/2011
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.
Notice of Motion-Affirmation-Exhibits
A-G-1-10
Affidavit of Service
Notice of Cross-Motion-Affirmation-Affidavit-Exhibit27—31
L-Affidavit of Service
Service—Exhibits A-R
Affidavit of Service
Service-Case Law
Affidavit of Service
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
http://www.nycourts.gov/reporter/3dseries/2013/2013_51615.htm[2/25/2018 4:57:23 PM]
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).
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.
October 4, 2013
ENTER
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