Justice Sidney F. Strauss

QUEENS COUNTY
Supreme Court

It is ordered that the motion is determined as set forth herein.

In 1994, plaintiff commenced an action against defendant seeking divorce on grounds of cruel and inhuman treatment and proceeded to allege various acts by defendant which rendered it "unsafe and improper" for her to continue to cohabit with him. The only grounds for divorce alleged were the said allegations of cruel and inhuman treatment. A trial was held on the matter on October 1, 1998, and on October 30, 1998, that court determined that the action be dismissed "for failure on the part of plaintiff to establish a prima facie case for divorce." No further reasoning was provided in this decision. Approximately ten years later, in January 2008, plaintiff commenced the instant action for divorce against defendant alleging that "for a continuous period of more than one year, commencing January 1, 1998," defendant constructively abandoned plaintiff.

Defendant brings this motion seeking that the instant action be dismissed on grounds of res judicata and collateral estoppel, or in the alternative, that the matter be set down for a grounds trial. Defendant maintains that the instant action must be dismissed inasmuch as he alleges that plaintiff's claims accrued prior to the dismissal on the merits on the prior case, and further alleges that plaintiff is bringing "exactly" the same claims in the instant action.

Under the doctrines of res judicata and collateral estoppel, a party is precluded from relitigating in a subsequent action an issue clearly raised in a prior action and decided against that party. "What is controlling is the identity of the issue which has necessarily been decided in the prior action or proceeding." (Ryan v. New York Tel. Co., 62 NY2d 494 [1984].) The burden rests upon the proponent of collateral estoppel to demonstrate the identity and decisiveness of the issue, while the burden rests on the opponent to establish the absence of a full and fair opportunity to litigate the issue in the prior action or proceeding. (Ryan v. New York Tel. Co., supra.) Indeed, if an issue "could have been, but was not raised and litigated" in a prior matrimonial action, res judicata will bar a subsequent action. (Boronow v. Boronow, 71 NY2d 284 [1988].)

In reviewing the plaintiff's claims in this action, she alleges that the constructive abandonment took place at the marital residence commencing in January 1998. Defendant claims that insofar as the judgment was rendered in October 1998, ten months after the alleged abandonment began, that plaintiff should be precluded inasmuch as she ostensibly could have raised her claim at that time. However, in order to establish a claim for constructive abandonment, a party must plead and prove "a year's absence before an action for divorce grounded on abandonment may be brought, and the duration of a year is a jurisdictional prerequisite." (Phillips v. Phillips, 70 AD2d 30 [1979]; Cavallo v. Cavallo 79 Misc 2d 195 [1974].) On these facts, plaintiff could not have pleaded a period of abandonment commencing in January 1998 as of October 1998, inasmuch as the requisite one year period had not elapsed. It follows that there is no jurisdictional means whereby plaintiff "could have" brought her claim for abandonment at the time of her trial on grounds of cruel and inhuman treatment. (Cf., Varieur v. Varieur, 238 AD2d 931 [1997.) Plaintiff's nascent claims of abandonment could not have been considered as part of the same "factual grouping" of her claims for cruel and inhuman treatment. (Cf., Smith v. Russell Sage Coll., 54 NY2d 185 [1981].)

Moreover, the court finds that plaintiff could not have had a full and fair opportunity to litigate her claims in the prior action. There is no showing here that she litigated any claims related to constructive abandonment in the prior action inasmuch as the complaint at that time sounded only in claims of cruel and inhuman treatment. Nothing in the decision rendered by the court indicates that any claims of constructive abandonment were considered. (See, Sacks v. Sacks, 33 AD2d 802 [1969].)

Finally, defendant's reliance on Boronow v. Boronow (supra) and the cases cited therein, to wit: Martinelli v. Martinelli, (88 AD2d 635 [1982]) and Rakowski v. Rakowski, 109 AD2d 1 [1985]), is misplaced. In those cases, the court considered the specific question as to whether issues relating to the title of property could be raised in an action subsequent to the granting of the judgment of divorce. Indeed, it was determined that questions of title must be determined at the time of judgment inasmuch as "a continuation of the relationship and of the conflict among the parties . . . would be particularly perverse and the inevitable cloud on title should not be allowed to hang over the alienability of property." (Boronow v. Boronow, 71 NY2d at 291, supra.)

Here, there was no question of title raised in the prior proceeding, but rather, plaintiff was required to establish her claims of cruel and inhuman treatment, which she failed to do. There is no merit to defendant's contention that plaintiff is raising "exactly the same claims" in the instant action. Plaintiff was unable to establish the pre-requisites of cruel and inhuman treatment as a matter of proof in the first trial, and at that time, that court would have been without jurisdiction to consider any unripened claims for constructive abandonment. Accordingly, insofar as plaintiff could not have raised her claims for constructive abandonment at the time of the prior proceeding, movant has not met his burden of proof as to the identity of the issues, and plaintiff cannot be said to be barred by the doctrines of res judicata and collateral estoppel.

Nevertheless, in light of this court's policy of judicial economy in promptly resolving questions of grounds, the matter shall be set down for a grounds trial, and the parties are directed to contact the Clerk of the Court forthwith to so select a trial date.

A copy of this order has been faxed and/or mailed to the parties and/or their respective counsel.