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The Matrimonial StrategistLJN NewslettersNewsSections

New York Follows Other States

By Myrna Felder

In October 2005, a New York appellate court ruling in Chen v. Fischer, 12 A.D.3d 43, appeared to make a substantial change in the way litigation is managed where both matrimonial causes of action and tort claims are asserted in New York. The Second Department had held, for the first time, that an interspousal tort action seeking to recover damages for personal injuries commenced subsequent to, and separate from, an action for divorce is barred upon the res judicata principles of claim preclusion. In short, a spouse had to bring any personal injury claim he or she might have as a cause of action within the matrimonial action. A separate tort action was no longer tenable.

In December 2005, New York's highest court, the Court of Appeals, reversed and remanded the matter to the trial court for further proceedings in accordance with the opinion in which the full court concurred. In its ruling, the court held that a litigant is not precluded from litigating a personal injury claim in an action separate from the matrimonial action. If a separate interspousal 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. Furthermore, 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 upon the same allegations.

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