The following papers were considered in connection with Defendant's Order to Show Cause dated May 13, 2025 (hereinafter referred to as "Motion Sequence No. 1") (NYSCEF DOC Nos. 45, 52), seeking an Order:

1) Vacating the grounds stipulation in the Preliminary Conference Order dated December [*2]10, 2024;

2) Awarding Defendant partial summary judgment by dismissing the Complaint and declaring that the marriage between the parties is a nullity and void pursuant to Domestic Relations Law Sections 6 and 140(a); and

3) For such other and further relief as this Court deems just and proper.

Plaintiff submitted opposition to the foregoing relief and seeks for Defendant's motion to be denied in its entirety.

Upon the foregoing papers, the applications are decided as follows:

The parties were married on November 10, 2012, in *******, Florida in a civil ceremony. Three children were born of the marriage, A.P., date of birth *******, V.P., date of birth, ********, and D.P., date of birth ******* (hereinafter referred to as the "Children"). Plaintiff commenced this action for divorce on July 18, 2024, by filing to NYSCEF a Summons with Notice (NYSCEF DOC No. 1).

Prior to this action, Defendant had commenced an action for divorce in early 2019 (51095/2019) and again in mid-2023 (62951/2023). In both actions, Defendant had alleged the ground of irretrievable breakdown of the marriage pursuant to DRL §170(7). Both actions were ultimately withdrawn or dismissed.

Plaintiff filed a Verified Complaint to NYSCEF on February 17, 2025 (NYCEF DOC No. 30) alleging irretrievable breakdown of the marriage pursuant to DRL §170(7).

At the Preliminary Conference for this action, on December 10, 2024, the parties resolved the grounds of the divorce pursuant to DRL §170(7), as irretrievable breakdown of the marriage (Preliminary Conference Order NYSCEF DOC No. 20). The parties' stipulation, inter alia, as to grounds was signed by both parties and their respective counsel and So Ordered by this Court on December 10, 2024.

Defendant filed an Answer with Counterclaims to NYSCEF on April 9, 2025 (NYSCEF DOC No. 31). In her Answer, she asserted four counterclaims for divorce, including but not limited to a claim pursuant to DRL § 6 and §140(a) declaring the nullity of a void marriage.

On this application, Defendant seeks for this Court to grant her partial summary judgment dismissing the complaint and declaring the nullity of a void marriage, pursuant to DRL §6 and §140(a). She claims that it is an undisputed fact that the parties' marriage is void ab initio because Plaintiff was still married on the date the parties wed.

It is well settled in New York that a party seeking summary judgment,

"... must tender evidentiary proof in admissible form sufficient to show that there remains no reasonably disputable triable issue of material fact such that judgment should be directed in its favor as a matter of law (see Giuffrida v Citibank Corp., 100 NY2d 72 [2003], citing Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Only upon the movant's sufficient prima facie showing does the burden shift to the respondent to rebut such showing (see id.)"

Plaintiff opposes this motion, correctly pointing out that Defendant failed to provide two key documents to support her moving papers for summary judgment and to have this Court declare the nullity of a void marriage, i.e. the certified marriage certificate, and the divorce documents from Plaintiff's first marriage. It was not until Defendant submitted reply papers that she attached the Judgment of Divorce from Plaintiff's first marriage in support of her motion.

A party moving for summary judgment cannot attempt "to remedy a fundamental deficiency in the moving papers by submitting evidentiary material with the reply" (Ford v Weishaus, 86 AD3d 421,422, [internal quotation marks mitted]; see Arriola v City of New York, 128 AD3d 747 [2d Dept. 2015]; Henry v Peguero, 72 AD3d 600 [1st Dept 2010] Agulnick v Agulnick 191 AD3d 12, 16.

While this Court agrees that Defendant's failure to submit proof in her moving papers is procedurally fatal to her application, the Court's analysis does not end there. Denial of Defendant's motion also lies in substantive issues of law, public policy, and fact. If subjected to a fact analysis, for instance, it strains credulity that Defendant, an attorney by profession, having notarized Plaintiff's uncontested divorce paperwork, would be unaware or fail to inquire into the status of her soon-to-be-husband's first marriage before marrying him. Further, it would appear that both parties were aware that Plaintiff's divorce was not finalized on their wedding date and proceeded with the ceremony anyway. They then went on to build a life together, intentionally acquired property that they arguably intended to be marital, and most important to this analysis, had three children of their union.

Despite this, Defendant claims she is entitled to an order declaring the parties' marriage [*3]void pursuant to DRL §140(a). Suddenly, it is to be believed that Defendant just came upon the knowledge of Plaintiff's alleged bigamy and now the entirety of their union, including their marital property and their children, is delegitimized in one fell swoop. According to Defendant, it would naturally flow from a declaration of a void marriage, that Plaintiff would not be entitled to any economic relief as the marriage did not exist in the first place. As is set forth below, this contention is wholly without merit as contrary to public policy and New York's Domestic Relations Law.

Indeed, as quoted by Defendant, DRL §6 and §140(a) set forth the grounds in an action to declare the nullity of a void marriage. However, DRL §236, which provides for the disposition of marital property, specifically includes actions to declare the nullity of a void marriage because,

"[i]n drafting the New York Domestic Relations Laws, the 'Legislature has envisioned circumstances where it might be appropriate to grant economic relief to a spouse who has participated in a ceremonial marriage and has lived in a "marital" relationship, despite the fact that the parties' marriage was void and a valid marital relationship never existed between the parties'" (DeLyra v DeLyra, 141 AD2d 75 [2d Dept 1988]).

Even if Defendant was successful in proving that her purported marriage is void, Plaintiff is still entitled to assert his right to equitable distribution of the property the parties' obtained throughout their union.

In DeLyra v DeLyra, 74 NY2d 872 [1989], the Court of Appeals affirmed the decision of the Appellate Division Second Department, which granted equitable distribution of the property acquired during the parties' purported marriage. There, Plaintiff commenced an action for divorce and Defendant counterclaimed for a declaration that the marriage was void ab initio, because, at the time of the wedding, Plaintiff was still married to her former husband. After declaring the nullity of the parties' marriage, the Court ordered that the parties' marital property be equitably distributed pursuant to Domestic Relations Law § 236 (B)(5). The Court of Appeals held that "the Appellate Division properly concluded that, under the facts of this case, where the parties' void marriage has been declared a nullity, their marital property is subject to equitable distribution" (Id. at 873).

Specific to this case,

"Domestic Relations Law § 236 (B) (1) (c) and (5) (d), (e) and (f), which indicate 'how the courts [are] to categorize, evaluate and distribute' marital property, are equally applicable upon the judicial termination of a void marriage, as well as the judicial termination of a valid marriage (cf., Brandt v Brandt, NYLJ Nov. 19, 1987, at 30, col 6, supra.)" (DeLyra v DeLyra, 141 AD2d 75, 80 [2d Dept 1988]).

Similarly, in Valente v Cabral, (177 AD3d 810, 811-812 [2d Dept. 2019]), an action to declare the nullity of a marriage under DRL § 140(a), the Second Department followed DeLyra, and reversed a trial decision, holding,

"The Supreme Court erred in denying the defendant's request for maintenance and equitable distribution on the ground that the marriage was a nullity. Domestic Relations Law § 236 expressly provides that, '[i]n any action or proceeding brought . . . during the lifetime of both parties to the marriage to . . . declare the nullity of a void marriage, . . . the court may direct either spouse to provide suitably for the support of the other' (DomesticRelationsLaw§236[A][1]; see DeLyra v DeLyra, 74 NY2d at 873). The statute further provides that 'the court, in an action wherein all or part of the relief granted is ... declaration of the nullity of a marriage, ... shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment' (Domestic Relations Law § 236[B][5][a]; see also DeLyra v DeLyra, 74 NY2d at 873; David v Pillai, 303 AD2d 708 [2d Dept 2003]; Meier v Meier, 156 AD2d 348 [2d Dept 1989]; and Brandt v Brandt, 149 AD2d 646 [2d Dept 1989]"

Further, proving the nullity of this marriage may create a substantial injustice to the children of the marriage as against public policy.

" ... [It is] well established New York law that when a court is confronted with the claim that a formal second marriage is invalid because of the existence of a valid first marriage, a strong presumption of validity attaches to the second marriage. (internal citations omitted). The presumption of the validity of the second marriage, moreover, grows stronger and stronger where a substantial injustice would be created by invalidating that marriage. See Dolan v. Celebrezze, 381 F2d 231, 237—38 (2d Cir 1967) (Friendly, J.) (canvassing New York cases and noting that the presumption favoring the validity of the second marriage varies in its force with the attendant facts and circumstances). "[T]he decisions that have held the second marriage to be valid on the basis of the presumption are explicable in terms of effectuating a particular public policy such as upholding legitimacy [or] favoring the participation in the decedent's estate of one who lived with him as his spouse (id)." Grabois v. Jones, 89 F3d 97, 100 (2d Cir 1996]).

In McClean v Board of Trustees of the Fire Department of the City of New York Pension Fund, 78 Misc 3d 1010 (Sup. Ct. Kings County 2023), the Court upheld the marriage of the second wife for purposes of collecting death benefits even though the second marriage could be perceived to be void as bigamous. In making this determination, the Court took into consideration that the couple in the purported marriage had lived together for decades, shared finances, held themselves out as husband and wife, and the wife had supported the firefighter as he battled through his injuries and illnesses. All of the foregoing facts in McLean apply here, plus the existence of the parties' three children. Therefore, this Court is led to consider the potential that this marriage is valid, subject to proof at trial.

Based on the foregoing, Defendant has failed to make a prima facie showing of entitlement to summary judgment as a matter of law, based on procedural error, and substantive issues on the law and facts. In denying partial summary judgment, and based on the foregoing, Defendant's request for this Court to dismiss the complaint and vacate the grounds portion of the Preliminary Conference Order is denied.

In light of the foregoing, it is hereby

ORDERED, that the Defendant's motion is denied in its entirety; and it is further

ORDERED that Defendant shall serve a copy of this Decision & Order on Plaintiff with Notice of Entry by NYSCEF delivery no later than *******, 2025 with proof of service; and it is further

ORDERED that the parties shall appear for a conference on ******** , 2025; and it is further

ORDERED that any relief requested and not decided herein is denied.

This constitutes the decision and order of the Court.