PHONE 917.300.1958                   244 Fifth Avenue Suite 2369 New York NY 10001

New York Appeal of Common Law Marriage Discovery Issues

To be argued by
Susan Chana Lask, Esq.
Time requested: 15 minutes



                                                                                                   Appellate Division
-against-                                                                                      Docket No. 2000-04938 2000-05423





Attorney for Plaintiff-Respondent Jones
853 Broadway, Suite 1516
New York, New York 10003
(212) 358-5762

Supreme Court, Kings County, Index #46702/98

COUNTERSTATEMENT OF FACTS............................................................. 1

ARGUMENT............................................................................................... 6

FACT TO BE RESOLVED.....................................................................

A. Appellant Alleged That He Was Legally Married To Another Woman
During His 15 Year Common Law Relationship With Respondent Yet He
Offered No Documentary Evidence to Support his allegation as
Required By Law..............................................................................

B. Another Material Issue of Fact Existed with Respect to Respondent’s
Rights Under the Law as an “Innocent Spouse” and Being Allowed
Financial Relief from the Bigamist Husband...............................................................


A. Appellant had More than Enough Notice of the Order it is Attempting
to Untimely Appeal from by (a) Its Own Appearances at the Court When
the Order was Issued, (b) Its Own MotionTo Resettle the Order and (c)
Respondent’s Notice of Entry...........................................................

B. Respondent’s Attorney’s February 28, 1999 Affidavit of Service Based
on Personal Knowledge of Serving the February 4, 1999 Order is the
Best Evidence of Service Upon Appellant..........................................


Air Line Pilots Ass'n, Intern. v. O'Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 1130,
113 L.Ed.2d 51 (1991)....................................................................................... 10


Respondent makes this CounterStatement of Facts because there are numerous criticisms and attacks made upon respondent and her counsel in appellant’s brief that are not supported by the record. Respondent objects to any facts in appellant’s brief that are contrary to those stated herein and provides the following as the statement of facts:

Plaintiff-Respondent, Velma Jones, met defendant-appellant, Willie James Doe, in 1984; he was the minister of the church she attended in Brooklyn, New York. R.67;R.33. They commenced a relationship with each other that lasted for the next 15 years by living together, travelling together, placing respondent on appellant’s be employment beneficiary plans and other property, and defendant-appellant holding himself out as plaintiff-respondent’s husband to other persons and in states, such as Pennsylvania, Alabama and Florida that recognize Common Law Marriages. R.17; R.33; R.47-49; R.69; R.71-74.

Defendant-appeallant represented to plaintiff-respondent and other persons that he was a divorced man, introduced himself and respondent as “husband and wife” to others and held their relationship out as husband and wife. R.68. Since 1985 they lived together in Brooklyn, New York. R. 33. In May, 1998, appellant had a stroke and was admitted to a hospital. R.34. Thereafter, appellant never returned to the home he shared with respondent, claiming he moved in with his first wife in New Jersey. R.34.

Respondent commenced this action by filing a December 4, 1998 Complaint seeking to declare a common law marriage between the parties and to enforce the express promises of appellant to support respondent and grant respondent exclusive occupancy of the home they shared for some 15 years. R. 47-51. Appellant did not answer the Complaint but filed a January 6, 1998 Summary Judgment Motion claiming because the appellant was married during the whole 15 years of his relationship with respondent then a common law marriage could not be declared. R.17-65. That was the first time respondent ever heard that appellant was married as he represented to her and others that he was a divorced man. R.67. Respondent submitted opposition papers, dated February 2, 1999 attesting that appellant was a divorced man and supporting affidavits of other persons swearing to that fact. R.67-74. After oral argument on February 4, 1999, the lower court denied appellant’s summary judgment motion because there were “numerous issues of fact to be resolved”. R.15 (as resettled at R.10). On June 21, 1999, respondent filed a CPLR 3126 motion to strike appellant’s answer for failing to respond to respondent’s discovery requests. R.98. On August 12, 1999, after oral argument and due deliberation, the lower court issued its Order directing appellant to:

“Answer Interrogatories and Request for Production of Documents of Plaintiff
on or before September 10, 1999. If defendant does not answer said discovery
then defendant's answer Doe be dismissed.” R.101

The lower court also admonished appellant’s counsel for her misconduct in failing to answer discovery, specifically informing that her and her client would "face stiff sanctions up to $10,000" for their behavior. R.99. Despite that Order and the court’s admonishments, appellant still did not answer by the Order cut-off date but instead on or about September 16, 1999, six days after the ordered cut-off date of September 10, 1999, appellant's incomplete responses. R.99. After appellant’s counsel ignored respondent’s counse’s good-faith efforts to obtain complete discovery, respondent filed a second CPLR 3126 Motion, dated November 29, 1999, to enforce the lower court’s August 12, 1999 Order to strike appellant’s pleadings due to its failure to abide by the first Order directing appellant to answer discovery. R.97-140. On March 10, 2000, the lower court issued its Order striking appellants pleadings because it “failed to comply with this Court’s August 12, 1999 Order.” R.13.


The lower court’s Orders of March 18, 1999 and February 4, 1999 both properly deny Defendant-Appellant’s summary judgment motion because there were numerous issues of fact to be resolved. R. 10; 15; 68. For example, one material issue of fact is Appellant’s sole argument that he was legally married during his 15 year relationship with Respondent and was never divorced from his first wife so a second marriage would be void. To clear up the misrepresentation at Appellant’s Brief, page 8, where it states it is “undisputed” that Appellant was married and never divorce, that is completly untrue as because of that very dispute, Appellant’s summary judgment was denied. Throughout the underlying record that material issue of fact was disputed by Respondent and four other persons’ affidavits, all swearing noone knew Appellant was ever married and that Appellant held himself out as Respondent’s husband. R.67-74. Appellant’s Brief focuses on repeatedly stating that Appellant was married and therefore there could be no second common law marriage. Such repetitiveness obfuscates the fact that it does not matter if Appellant was married or not, what was important in denying Appellant’s summary judgment motion was the fact that Appellant never made his burden of proof to the lower court that he was actually legally married and never divorced during the whole of his 15 year common law relationship with Respondent.

Appellant’s Affidavit to the lower court claiming he was married to another person, R. 31-45, was not legally sufficient to support a summary judgment motion because he never offered documentary evidence as required by law to support his affidavit. Brandstadter v. Brandstadter, 193 N.Y.S.2d 687 (1959.); Urban v. Urban, 16 A.D.2d 744, 227 N.Y.S.2d 101(1962). In Brandstadter, the Kings County Supreme Court denied a summary judgment motion by a party attempting to annul a marriage based on a previous marriage because the Affidavit swearing a previous marriage existed was not supported by proper documentary evidence. Appellant never introduced into the record nor in discovery a previous marriage certificate, a decree of any jurisdiction stating he was divorce decrees did not exist nor any evidence whatsoever to support that he was actually married. R. 32. He claims to have a wife named Bernice, R.31, yet even she did not supply an Affidavit to support his claim.

A. Appellant Alleged That He Was Legally Married To Another Woman During His 15 Year Common Law Relationship With Respondent Yet He Offered No Documentary Evidence to Support his allegation as Required By Law

A party seeking to validate a first marriage, and invalidate the second, has the burden to overcome a strong presumption and is also required to prove a negative, i.e. that the first marriage was never previously terminated. Rudyk v. Rudyk, 278 A.D. 837, 104 N.Y.S. 491 (2d Dept, 1951); Denice v. Denice, 95 N.Y.S.2d 815 (1950); Matter of Meehan's Estate, 150 App.Div. 681, 135 N.Y.S. 723; Matter of Dugro's Will, 261 App.Div. 236, 25 N.Y.S.2d 88, affirmed 287 N.Y. 595, 38 N.E.2d 706. The absence of a divorce decree would be acceptable proof and may be established by a statement of the court official with custody of the court records that a diligent search of those records failed to turn up a judgment dissolving the alleged first marriage. See CPLR 4521. Naturally, the absence of a divorce in one jurisdiction does not negate the possibility of a divorce in other jurisdictions, so the courts require only certifications from jurisdictions in issue.

In Matter of Brown, 40 N.Y.2d 938, 390 N.Y.S.2d 59, 358 N.E.2d 883 (1976), the Court of Appeals held that where the proponent of the second marriage alleges that the first marriage was judicially dissolved at a particular time or place, then the proponent of the first marriage, to rebut the presumption favoring the second marriage and validate the first marriage, need only establish that no such judicial dissolution existed in that particular jurisdiction. In Brown, Alabama was the only jurisdiction in issue. The court accepted as proper documentary proof a certified statement, issued by the officer having legal custody of the records of Clinton County, Alabama, that a diligent search failed to locate a divorce decree. The holding of Brown was extended in the Federal Courts in Metropolitan Life Insurance Company v. Jackson, 896 F.Supp. 318 (S.D.N.Y.1995). In Metropolitan, the court accepted a search of the divorce records of two New York counties in issue to prove a divorce was never filed .
In the instant case, Defendant-Appellant never offered any proof of a search of any jurisdiction. He claims he was married in 1970 in Maryland and his first wife remained in Maryland. R.32. He also claims for 30 years he was a minister in Brooklyn, New York. R.32. At the very least, he should have provided proof of a search of those two jurisdiction’s divorce records which would be acceptable documentary evidence to support his affidavit stating he was never divorced. Clearly, that would be the first point of evidence a person claiming to be legally married would provide to prove the marriage was never dissolved. By the fact that such supporting documentary evidence was never produced, the lower court had no alternative but to deny Appellant’s self-serving affidavit that he was never divorced. The lower court’s decision to deny Appellant’s summary judgment is moreso supported by the fact that Respondent completly controverted his unsupported Affidavit by her Affidavit supported by four witness Affidavits, all swearing Defendant-Appellant was never married, they never knew he was married and he told them he was not married during his 15 year relationship with Respondent. R.67-74. The lower court’s denial of Appellant’s summary judgment motion was properly based.

This Reply Brief will not address the cases cited in Appellant’s Brief from the different jurisdictions of Florida, Pennsylvania and Alabama, and corresponding New York cases, that suppossedly support his contention that his first marriage voids a second marriage because Appellant never proved he was married in the first place. His failure to make such proof as required by law moots his attempts to argue with respect to his “lack of capacity to enter into a marriage” and his impediment to marriage being he was already married.

B. A Material Issue of Fact Existed with Respect to Respondent being Protected as an “Innocent Spouse” and Being Allowed Financial Relief from the Bigamist Husband

Although the issue is settled herein that Appellant never sustained his burden of proof with respect to his allegation that he was already married, Respondent notes here, for the record, that the other material fact before the lower court was whether Respondent was an innocent spouse, R. 68, wherein she could collect financial relief from Appellant. Again, the existence of issues of material facts sustains the lower court’s denial of Appellant’s summary judgment.

The law protects the “innocent spouse” who had no knowledge of the bigamist husband. The Appellate Division, Second Department and the Kings County Supreme Court in Johnson v. Johnson, 295 N.Y. 477, 68 N.E. 2d 499 (1946) and Jacobson v. Jacobson, 232 N.Y.S.2d 467, 36 Misc. 2d 59 (1962), respectively, protected the “innocent spouse”, describing it as the “unhappy plight of the innocent wife married to a bigamist husband...” (Johnson at 480). Those cases allowed support and maintenance from the husband where he did not disclose his impediment to marriage. Support and maintenance were alleged in the Complaint , R. 47-51, and material issues of fact with respect to that allegation needed to be determined by the lower court.
In Jacobson, there was the unusual circumstance where both husband and wife were actually legally married before they married each other. Mrs. Jacobson filed for divorce and demanded pendente lite support. Mr. Jacobson counterclaimed that the marriage was “void because it was entered into by him while his own former marriage to his then living wife was valid and subsisting" (Jacobson at page 2). The supreme court gave Ms. Jacobson protection under the law as an “innocent spouse” because Mr. Jacobson knew of his prior subsisting marriage when he married and during his marriage with Mrs. Jacobson, yet he withheld that information from her. Mr. Jacobson’s counterclaim to annul the marriage based on his being married already was denied. Jacobson is applicable to the instant case as Defendant-Appellant’s argument is the same: because he was married a common law marriage could not exist. The rationale in Jacobson denying the husband’s self-serving bigamy defense should be extended here, thus denying Appellant any defense as Plaintiff innocently remained in what she believed to be a common law marriage for 15 years because Defendant acknowledged to her and others that he was a divorced man. R. 67-74. In fact, as a result of the underlying action, this is the first time Plaintiff-Respondent heard that Appellant may have been married throughout his 15 years with Plaintiff. R. 67.


Time to appeal is measured from the date of the original order, not from the date of the resettled order, specifically when appealable issues from the original order were not modified by the resettled order. Kitchen v. Port Authority of New York and New Jersey, 221 A.D.2d 195, 633 N.Y.S.2d 167,(1 Dept. 1995); Singer v. Board of Educ. of City of New York, 97 A.D.2d 507, 468 N.Y.S.2d 25 (2 Dept. 1983); Kolasz v. Levitt , 63 A.D.2d 777, 404 N.Y.S.2d 914, (3 Dept. 1978). In this case, Appellant appeals from a March 18, 1999 resettled order denying defendant's summary judgment motion. R.4. That Resettled Order confirmed an initial February 4, 1999 Order that was issued from the bench, in front of all parties. R.18. There was no material change from the resettled order and the initial order-- both orders denied the same summary judgment motion of defendant and both Orders were issued from the bench while all parties were present. The resettled order was purely a clarification, wherein it deleted the words "denied with prejudice as to the entire motion" from the original February 4, 1999 order, leaving identical issues.

A. Appellant had More than Enough Notice of the Order it is Attempting to Untimely Appeal from by (a) Its Own Appearances at the Court When the Order was Issued, (b) Its Own MotionTo Resettle the Order and (c) Respondent’s Notice of Entry

Appellant was on notice of entry of the initial order by Respondent’s February 28, 1999 Notice of Entry (Appellant did not include the same in its Record on Appeal). Under CPLR 5513[a] Defendant-Appellant had 30 days from that initial February 28, 1999 notice of entry to file it's notice of appeal. Defendant did not file a notice of appeal within thirty days. Its present notice of appeal was filed on or about May 10, 2000, one year later and is therefore untimely and must be dismissed.

Additionally, both Orders were made orally by the lower court while Appellant's counsel was present. In Corteguera v. City of New York, 179 A.D.2d 362, 577 N.Y.S.2d 837 (1st Dep't 1992), an in court oral decision was made before all parties; however, one party appealed claiming a court’s short form order was not proper notice of an oral decision and the actual transcript was required to be served. The Corteguera court held short form orders with notice of entry are proper notice to start the time to file an appeal notice. The court also said that the parties are presumed to know the contents of an in-court oral decision anyway, because they are present when it's rendered. The result in Corteguera was that the appeal was dismissed as untimely.

Appellant in this case can not now claim it had no notice of either Order. Just as in Corteguera, Appellant's counsel was present when the Judge issued both Orders from the bench and the initial February 4, 1999 Orders was reviewed by Appellant's counsel before submitting it for the Court's signature. R.91. In fact, Appellant confirms its knowledge and notice of the Order by its own February 12, 1999 Motion to resettle. R.89-95. That motion states that the lower court denied Appellant's summary judgment motion because there were numerous issues of fact to be resolved.

Appellant can not now deny it never had notice of an Order denying its summary judgment. Appellant can not appeal an Order more than a year after being on notice of its contents.

B. Respondent’s Attorney’s February 28, 1999 Affidavit of Service Based on Personal Knowledge of Serving the February 4, 1999 Order is the Best Evidence of Service Upon Appellant

Appellant’s attempts to deny receiving Respondent’s notice of entry are baseless under the law as respondent’s attorney’s affidavit states that her attorney personally served the same on Appellant’s counsel on February 28, 2000, and such a personal affidavit can not be refuted. Heffernan v. Village of Munsey Park , 133 A.D.2d 139, 518 N.Y.S.2d 813 (2 Dept. 1987). Appellant’s Brief, page 23, admits the affidavit of service exists; however, Appellant takes issue with the fact that the Affidavit states February 28, 1999 as the service date but Respondents recent opposition papers state the date as February 14, 2000. Respondent submits herewith that they are not conflicting accounts that prove, as Appellant attempts to argue, that service was not made. The opposition papers containing February 14 is a typo and should have been February 28.


A. An Order Pursuant To CPLR 3126 Dismissing a Party’s Pleadings is Not Void if it does not Contain the Word "Wilfully"

CPLR 3126 states:
" If any party... refuses to obey an order for disclosure or wilfully fails to disclose
(emphasis added) information which the court finds ought to have been disclosed
pursuant to this article, the court may make such orders with regard to the failure
or refusal as are just..."

"Willfully" is not the mandate of CPLR 3126; it is one of two alternatives to the imposition of this statute. The courts may impose the penalties of CPLR 3126 when a party refuses to obey an order--it does not have to be "willfully". This court held in Caruso vs. Malang, 234 A.D.2d 496, 651 N.Y.S.2d 186 (1996) that when a party disobeys a court order or frustrates the disclosure process then dismissal of a pleading is within the broad discretion of the court. "Willfully" is not the mandate.

The Supreme Court has wide latititude in imposing CPLR 3126 penalties and such penalties will not be disturbed on appeal, absent an abuse of the discretion of the court. Gross vs. Edmer Sanitary Supply, Co., Inc., et. al., 201 A.D.2d 390, 607 NYS 2d 927 (1994). Defendant-Appellant bases it's appeal solely on the fact that the court did not use the word willfully; that is not a basis to appeal a CPLR 3126 order. Defendant-Appellant appeals from a second order of March 10, 2000 wherein the court dismissed defendant's Verified Answer and Counterclaim , pursuant to CPLR 3126 for failing to comply with a discovery order. Defendant-Appellant contends that because that order did not include the word "wilfully" to describe its failure to comply then it has a right to appeal. That is a meritless position under the law.

There are a multitude of cases holding it proper to strike defendant’s answer after an order of the same court is not complied with by that defendant: Rowe v. Sook, 224 A.D.2d 404, 638 N.Y.S.2d 120; Spataro v. Ervin, 186 A.D.2d 793, 589 N.Y.S.2d 73; Chase Manhattan Bank v. Abad, 131 A.D.2d 312, 516 N.Y.S.2d 12; Besson v. Beirne, 188 A.D.2d 330, 591 N.Y.S.2d 14. The August 12, 1999 Order in the present case directed defendant to respond to discovery or the court would dismiss it's answer. Defendant failed to answer all discovery and, after oral argument, on March 10, 2000 the it properly dismissed defendant’s pleadings under CPLR 3126, stating "...Defendant failed to comply with this court's August 12, 1999 Order..." The appeal of the March 10, 2000 Order is meritless.

WHEREFORE, it is respectfully submitted that the Court vacate Defendant-Appellant's present stay of the underlying action and dismiss its notice of appeals, or in the alternative, if a stay is allowed by this court, then to limit the stay, pursuant to CPLR section 5519(c), for 30 days, and for such other and further relief as this Court may deem just and proper.

Dated: New York, New York
December 26, 2000 Yours, etc.,
Susan Chana Lask, Esq.
Attorney for Plaintiff-Respondent