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ERMINIA SORRENTINO v. VERNA MIERZWA (07/01/69)

COURT OF APPEALS OF NEW YORK 1969.NY.42347 <http://www.versuslaw.com>; 250 N.E.2d 58; 25 N.Y.2d 59 decided: July 1, 1969. ERMINIA SORRENTINO, APPELLANT,v.VERNA MIERZWA, RESPONDENT Sorrentino v. Mierzwa, 30 A.D.2d 549, reversed. Counsel Gustave Menit and Benjamin Natter for appellant. Lloyd I. Isler for respondent. Scileppi, J. Chief Judge Fuld and Judges Burke, Bergan, Breitel and Jasen concur. Author: Scileppi


Sorrentino v. Mierzwa, 30 A.D.2d 549, reversed.

Scileppi, J. Chief Judge Fuld and Judges Burke, Bergan, Breitel and Jasen concur.

Author: Scileppi

 In 1927 appellant and Alphonse G. Sorrentino (hereafter the "husband") were married in Brooklyn, New York. In 1939 the parties separated after which the husband voluntarily began to pay appellant $80 per month support for herself and their two children, then 10 and 11 years of age. In the latter part of July, 1951 the husband, having retired from the New York City Police Force, and his children having reached majority, went to Reno, Nevada, and obtained a divorce decree dated October 20, 1951 by default. Appellant was served with process in this State in September, 1951 but never appeared in the Nevada action either in person or by attorney. After receiving both the summons and a copy of the decree, appellant consulted a neighbor who was an attorney and was advised that both the summons and the decree were "no good".

On the very day the decree was rendered, the husband went through a marriage ceremony with Verna Mierzwa, the respondent herein. Less than two weeks thereafter the husband and the respondent left Nevada and eventually took up residence in Jersey City, New Jersey, where they continued to reside until the husband's death in July, 1965.

In May, 1952, approximately 7 months after the divorce decree was rendered, the appellant instituted an action in the former Domestic Relations Court of the City of New York, Family Court Division, for support. The court awarded appellant $50 a month payable out of the husband's police pension fund having found that: "[Alphonse Sorrentino] is the husband of [Erminia Sorrentino] and is legally chargeable with the support of the dependent". These support payments continued until the husband's death in 1965. Shortly thereafter, appellant and respondent applied to the New York Police Department for a widow's pension. The Police Department refused to make payment until the Supreme Court made a final determination as to who was the lawful widow. Appellant then instituted the present action seeking a declaratory judgment that the Nevada decree was void for lack of jurisdiction and that she was the lawful widow of the deceased husband.

The first trial resulted in a dismissal of the complaint. However, after appellant's motion for a new trial based on newly discovered evidence was granted,*fn1 the appellant obtained a determination in her favor.

On appeal the Appellate Division reversed, 3 to 2, holding that the action was barred by the Statute of Limitations (CPLR 213, subd. 1) and that appellant's failure to institute a declaratory judgment action for 14 years after being advised that the divorce decree was invalid constituted gross laches and, therefore, she is estopped from asserting that she is the lawful widow of the deceased husband.

It is our opinion that the Appellate Division incorrectly applied both the Statute of Limitations and the equitable doctrine of laches.

The appellant's right to the widow's pension did not mature until the husband's death, in July, 1965. This is evidenced by the fact that the pension was only payable to the widow and, therefore, if the appellant had predeceased the husband, no right would ever have matured in appellant's favor. The respondent contends and the majority below has held, however, that the Statute of Limitations (CPLR 213, subd. 1) is a bar to this action for a declaratory judgment. It is argued that the statute begins to run on a declaratory judgment action when the parties first become aware that a controversy exists and, therefore, the appellant being aware in 1951 that her marital status was in dispute, the statutory period to commence the instant action expired in 1957. Surely such a position cannot be sustained.

To hold that the statutory period commences at the time a justiciable controversy arises would allow the expiration of the statutory period on the declaratory judgment action to possibly bar the commencement of an action to enforce a right before it had ever matured. This is precisely the effect of the majority's determination below. Clearly, the more reasonable rule to adopt is that, notwithstanding the existence of a justiciable controversy which has given rise to the right to bring an action for a declaratory judgment, appellant was free to bring the instant action so long as the Statute of Limitations had not barred the enforcement of her right to the pension fund.

The appellant having initiated the present action less than two months after the husband's death, it is clear that the present action has been brought within the time limitation set forth above.

We also disagree with the Appellate Division's analysis with respect to the issue of laches.

As was stated in Feldman v. Metropolitan Life Ins. Co. (259 App. Div. 123, 125): "Laches, a defense peculiar to courts of equity, is founded on lapse of time and the intervention of circumstances * * * that render it unjust on equitable principles for a court of equity to assist plaintiff * * * [It] is not mere delay but delay that works disadvantage or injury."

It is our opinion that the required delay and prejudice necessary to invoke the equitable doctrine of laches have not been ...


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