DOMINGUEZ v. DOMINGUEZ (1998)

Supreme Court, Appellate Division, First Department, New York.

Diane C. DOMINGUEZ, Plaintiff-Respondent, v. Jose DOMINGUEZ, Defendant-Appellant.

Decided: November 05, 1998

Before SULLIVAN, J.P., and ROSENBERGER, WALLACH, MAZZARELLI and ANDRIAS, JJ.

Marc J. Ialenti, for plaintiff-respondent. Frederick C. Stern, for defendant-appellant.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered on or about July 3, 1997, which, insofar as appealed from, denied defendant's motion pursuant to CPLR 5015 to vacate the parties' judgment of divorce on the ground of fraud, unanimously affirmed, without costs.

In view of defendant's explicit statement to the court on plaintiff's prior application seeking equitable distribution that he did not wish to challenge the validity of the judgment of divorce, and the court's reliance on that statement in determining that plaintiff is entitled to equitable distribution, defendant's motion to vacate the judgment of divorce was properly denied on the ground that the validity of the judgment had already been determined in the prior order and was law of the case. In any event, affirmance is warranted on the ground that defendant had a full opportunity to challenge the judgment, explicitly stated that he did not wish to do so, and should be equitably estopped from taking an inconsistent position at this late juncture.

MEMORANDUM DECISION.

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