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Chen v. Fischer12/15/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Plaintiff Xiao Yang Chen and defendant Ian Ira Fischer were married on March 11, 2001. Shortly thereafter, Fischer commenced an action for divorce on the ground of cruel and inhuman treatment. Chen counterclaimed for divorce also alleging cruel and inhuman treatment and asserted an additional cause of action for fraudulent inducement. Specifically, as grounds for divorce, Chen alleged that on May 6, 2001, Fischer "grabbed and violently slapped her across the face and ear causing to suffer bruising, pain and swelling" and that he threw her on the ground and attempted to suffocate her. As a result of that incident, each party filed a family offense petition against the other in Family Court and received a temporary order of protection. The parties agreed to consolidate these petitions with the matrimonial action. At the conclusion of the matrimonial trial, they further agreed to withdraw the petitions without prejudice on the record in open court.
On October 15, 2001, prior to trial of the matrimonial action, the parties entered into a stipulation on the issue of fault. " n satisfaction of the stipulation," the parties agreed to withdraw all their fault allegations including those related to the May 6 incident save one. After trial on the remaining issues including equitable distribution and a fraudulent inducement cause of action on May 8, 2002 a dual judgment of divorce was granted on the ground of cruel and inhuman treatment based on each party's sole remaining fault allegation.
Chen allegedly commenced the instant personal injury action on January 18, 2002, while the matrimonial action was pending. The complaint asserted two causes of action one for intentional infliction of emotional distress and a second for assault and battery. As to the second cause of action, the complaint alleged that on May 6, 2001, Fischer slapped her in the face and ear, causing permanent injury, necessitating continuing medical treatment and rendering her unable to perform her usual and customary activities. Fischer answered, raising several affirmative defenses, including res judicata and various theories of estoppel.
Fischer moved to dismiss the complaint pursuant to CPLR 3211 (a)(5) and Chen cross-moved to dismiss several of Fischer's affirmative defenses. Supreme Court granted Fischer's motion and denied Chen's cross motion. The court found that the allegations in Chen's personal injury action were "virtually identical" to those in her counterclaim for divorce and arose out of the same transaction or series of transactions. Thus, the court determined that the tort action was barred by res judicata.
The Appellate Division affirmed, agreeing that the action was barred because the tort claim could have been litigated with the divorce action and Chen did not expressly reserve the right to bring that claim when she withdrew her fault allegations for purposes of the stipulation. The court extended the rule we set forth in Boronow v Boronow (71 NY2d 284, 290 ) that issues relating to marital property be decided with the matrimonial action to inter-spousal tort actions. Specifically, the court found that " ocietal needs, logic, and the desirability of bringing spousal litigation to finality now compel us to . . . hold that an inter-spousal tort action seeking to recover damages for personal injuries commenced subsequent to, and separate from, an action for divorce is . . . barred by claim preclusion" (12 AD3d 43, 47 ). We granted Chen leave to appeal and now reverse.
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