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Chen v. Fischer12/15/2005
ition, parties should be encouraged to stipulate to, rather than litigate, the issue of fault (see Blickstein v Blickstein, 99 AD2d 287, 293-294 [2d Dept 1984]; see also O'Brien v O'Brien, 66 NY2d 576, 589-590 [noting that fault should only be considered "in egregious cases" for purposes of equitable distribution, in part, "because fault will usually be difficult to assign and because introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues"]).
Unlike the Appellate Division, we decline to adopt the reasoning of the New Jersey Supreme Court in Tevis v Tevis (79 NJ 422, 400 A2d 1189 ). In Tevis, the Court held that under that State's "single controversy" rule, the inter-spousal personal injury claim should have been brought with the matrimonial action so that the issues between the parties could be decided in one proceeding in order to prevent protracted litigation (see Tevis, 79 NJ at 434, 400 A2d at 1196). However, that view is decidedly the minority view and the New Jersey Supreme Court has recently acknowledged the potential drawbacks to litigating an inter-spousal tort claim prior to the divorce proceeding noting that it "may have a negative psychological impact on parties by prolonging the uncertainty of their marital status" (Brennan v Orban, 145 NJ 282, 303, 678 A2d 667, 678 ). Indeed, other states to address the issue have reached the conclusion we reach today, emphasizing the fundamental differences between the two types of actions and noting the complications that could result from the rigid application of res judicata principles (see Delahunty v Massachusetts Mut. Life Ins. Co., 236 Conn 582, 590-594, 674 A2d 1290, 1295-1297 ; Henriksen v Cameron, 622 A2d 1135, 1141-1142 [Me 1993]; Heacock v Heacock, 402 Mass 21, 23-24, 520 NE2d 151, 153 ).
Here, although the personal injury claim could have been litigated with the matrimonial action as the facts arose from the same transaction or series of events it was not, as all of Chen's fault allegations, save one, were withdrawn by stipulation for the salutary purpose of expediting the matrimonial action. She is therefore not precluded from litigating that claim in a separate action.
Parties are free, of course, to join their inter-spousal tort claims with the matrimonial action (see CPLR 601 ) and the trial court retains discretion to sever the claims in the interest of convenience, if necessary (see CPLR 603). If a separate inter-spousal tort action is contemplated, however, or has been commenced, the better practice would be to include a reservation of rights in the judgment of divorce . Finally, if fault allegations are actually litigated in a matrimonial action, res judicata or some form of issue preclusion would bar a subsequent action in tort based on the same allegations.
Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this Opinion.
Order reversed, with costs, and case remitted to Supreme Court, Westchester County, for further proceedings in accordance with the opinion herein. Opinion by Judge Ciparick. Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo, Read and R.S. Smith concur.
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