| Frischknecht v Novaes |
| 2011 NY Slip Op 05017 [85 AD3d 722] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Audrey Frischknecht, Respondent, v Marco NogueiraNovaes, Appellant. |
—[*1]
In an action, inter alia, for the equitable distribution of marital property, the defendantappeals, as limited by his brief, from so much of an order of the Supreme Court, DutchessCounty (Dolan, J.), dated April 26, 2010, as denied that branch of his motion which was todismiss the cause of action for the distribution of property other than the marital residence on theground that the cause of action is barred by the doctrines of res judicata and collateral estoppel.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff former wife and the defendant former husband, both Brazilian citizens, weremarried in 1991. In 2006, they commenced an action for "amicable legal separation" in Brazil byentering into an agreement, which provided, inter alia, that their former marital residence in theState of New York would be distributed at the time of the divorce. After the requisite one-yearperiod of legal separation, the defendant commenced a proceeding in a Brazilian court to convertthe judicial separation into a final divorce and for the distribution of the marital residence. Theplaintiff responded with a counterclaim, alleging that the parties owned additional maritalproperty to be distributed. The Brazilian court ordered the dissolution of the marriage, but foundthat "since there [was] no agreement between the parties about the collection of assets purchasedduring the marriage, the partition of the couple's property shall be discussed in another action."
Subsequently, the plaintiff commenced this action in New York, inter alia, seeking equitabledistribution of the marital residence and other assets located in New York. The defendant did notobject to the distribution of the marital residence, but moved to dismiss the remainder of theplaintiff's complaint on the ground that it was barred by the doctrines of res judicata andcollateral estoppel. The Supreme Court denied that branch of the defendant's motion which wasto dismiss the plaintiff's claim for the distribution of property other than the marital residence.We affirm the order insofar as appealed from.
The plaintiff's claim for the distribution of the marital residence and other assets is not barredby the doctrines of res judicata and collateral estoppel, since the Brazilian court expressly [*2]declined to adjudicate the issue after it was raised by the parties(see Mahoney v Mahoney, 131 AD2d 822, 822-823 [1987]; cf. O'Connell v Corcoran, 1 NY3d179, 183-186 [2003]).
The defendant's remaining contention is without merit. Prudenti, P.J., Angiolillo, Florio andCohen, JJ., concur.