104 Misc. 2d 1143 | N.Y. Sup. Ct. | 1980
OPINION OF THE COURT
Defendant moves for summary judgment dismissing the complaint on the ground that plaintiff is civilly dead. Although the court has not been favored with a copy of the complaint, it appears that plaintiff seeks a judgment of divorce in this action. A copy of the answer reveals that defendant counterclaims for divorce, custody of the children of the marriage, support for herself and her children and for the establishment of a constructive trust respecting jointly owned real property.
By judgment of the Supreme Court, Bronx County, on March 22, 1979, plaintiff was sentenced to an indeterminate term of imprisonment with a maximum period of life and a minimum period of 15 years for the crime of criminal possession of a controlled substance in the first degree. By the same judgment, plaintiff was sentenced to an indeterminate term of imprisonment having a maximum of life and a minimum of
A person sentenced to imprisonment for life is thereafter deemed civilly dead. (Civil Rights Law, § 79-a.) It is necessary only that the sentence carry a maximum of life imprisonment for a marriage to be considered void, as of the time of sentence, as a consequence of the statute. (1 Foster-Freed, Law and the Family, § 12:1.) A judgment declaring the marriage void is not essential, but serves a practical purpose by establishing a record of the dissolution of the relationship. (Matter of Lindewall, 287 NY 347; Zizzo v Zizzo, 41 Misc 2d 928; 11A Zett-Edmonds-Schwartz, NY Civ Prac, par 22.04, subd [3].)
Here, the plaintiff cannot maintain a divorce action, since the marriage of the parties is now void. Although plaintiff argues that he is entitled to prosecute an action in any court (Civil Rights Law, § 79-a, subd 2), this contention does not bear upon the issue in the case at bar.
Motion granted.