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SUPREME COURT OF NEW YORK, SPECIAL TERM, BROOME COUNTY 1969.NY.41936 <>; 301 N.Y.S.2d 274; 59 Misc. 2d 856 June 9, 1969 AGNES W. PUFFER, PLAINTIFF,v.CITY OF BINGHAMTON, DEFENDANT Travis & Johnson (William H. Johnson, Jr., of counsel), for plaintiff. Leo A. Cianciosi, Deputy Corporation Counsel, for defendant. Howard A. Zeller, J. Author: Zeller

Howard A. Zeller, J.

Author: Zeller

 Plaintiff has brought this action to recover money damages for the allegedly negligent and wrongful issuance of a marriage license by a Deputy City Clerk of the City of Binghamton.

Defendant city moves for an order granting summary judgment pursuant to CPLR 3212 or in the alternative for an order for judgment dismissing the complaint pursuant to CPLR 3211.

On a motion for summary judgment it is the duty of the court to determine if any question of fact exists and if so to deny the motion. (Crowley's Milk Co. v. Klein, 24 A.D.2d 920; Di Sabato v. Soffes, 9 A.D.2d 297.) The court has no power to decide issues of fact on such a motion. On a motion to dismiss the complaint for insufficiency the allegations of the complaint must be deemed true for the purpose of deciding the motion. (Kober v. Kober, 16 N.Y.2d 191; Robins v. Finestone, 308 N. Y. 543; Zwirn v. Galento, 288 N. Y. 428.)

Hence, the essential version of events in this decision shall be those recited by plaintiff.

On September 12, 1966 plaintiff and one Daniel William Babcock applied at the office of the Binghamton City Clerk for a marriage license. In the course of taking the application by a Deputy City Clerk it was revealed that Mr. Babcock had been the defendant in a divorce action based on adultery brought in Supreme Court, Broome County, New York in 1960. Mr. Babcock then was required to and did provide the Deputy Clerk with a certified copy of the divorce judgment, which forbade the "defendant to remarry any other person during the lifetime" of his former wife, "except with the permission of the Court."

Plaintiff's opposing affidavit herein states that "At said time and place there was no conversation about whether or not said Daniel William Babcock had applied for or obtained court permission to remarry." The unverified complaint states that the former wife of Babcock was living on September 12, 1966 and that permission of the court to remarry then had not been obtained by him. An attorney's affidavit states that he examined the civil files of the Broome County Clerk and found no record of an order permitting Babcock to remarry.

The Deputy City Clerk issued the marriage license and plaintiff and Babcock were married at an announced public wedding on September 17, 1966 and lived together as man and wife until about November 11, 1966 when Babcock allegedly discovered their purported marriage was void. The complaint states that Babcock "thereupon abandoned plaintiff, left this jurisdiction and has not since that date been seen or heard from or about by plaintiff."

The first cause of action upon the foregoing recitals is based on an alleged negligent, wrongful and illegal issuance of a marriage license to plaintiff's damage in the sum of $100,700.

The second cause of action on the same events is based on the allegation that the Deputy Clerk falsely and fraudulently misrepresented to plaintiff "that there was no prohibition in law against the remarriage of said Daniel William Babcock to plaintiff from and after September 1, 1966" and that plaintiff believed and relied on these representations and entered a void marriage to plaintiff's damage in the amount of $100,700. Plaintiff fails to allege that the Deputy City Clerk knowingly made said misrepresentation or made it with reckless disregard for its truth or falsity. This is an essential element of a cause of action for fraudulent misrepresentation. Its omission renders the second cause of action defective. The second cause of action should be dismissed for failure to state a cause of action. Plaintiff has not asked leave to replead. (CPLR 3211, subd. [e].)

Section 1 of chapter 254 of the Laws of 1966, approved April 27, 1966 did in fact delete from the Domestic Relations Law the requirements of court modification of a prior judgment of divorce prohibiting an adulterous defendant's remarriage, but section 15 thereof made September 1, 1967 the effective date of this change in the law. (See L. 1968, ch. 584.)

Defendant city's answer and moving papers contend the action is premature as there has been no judicial determination that this marriage in fact was void, and it thus is presumptively valid.

Defendant city further argues the case should not proceed because Daniel William Babcock is a necessary party to the action since only he can testify whether or not he did apply to a Supreme Court elsewhere in the State for permission to remarry and because he further stated on his application for a license that no legal impediment to his right to remarry existed.

The City of Binghamton also claims it is immune to suit here as, in issuing a marriage license, it is engaging in a purely governmental and ministerial function involving no discretionary or quasi-judicial determination and is not responsible in law for any ...

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