Adams v. Dinkins

(Sup. Ct. N.Y. Cty. 10/20/83)

We represented: Petitioner

Gammerman, J.

DECISION and ORDER In this Article 78 proceeding, petitioner seeks an order directing respondent to issue a certificate of marriage and respondent cross-moves to dismiss.

Respondent argues that no order of mandamus should be issued because petitioner did not obtain a marriage license at the time of the January 1976 ceremony in New York County; because petitioner's marriage was solemnized without the marriage license by a clergyman who was not registered with respondent's office; and because petitioner's papers do not contain sufficient documentation of the divorces which ended the respective first marriages of petitioner and Melvin Douglas Adams.

Petitioner, the mother of a child by Mr. Adams, is suing him, based upon his alleged cruel and abusive treatment toward her, for divorce in Massachusetts. Mr. Adams is apparently defending that action on the ground that he was never married to petitioner.

The court accepts, and indeed respondent does not contest, the facts as alleged by the petitioner.

Respondent's first and second arguments, regarding the lack of license and clergy registration, are not necessarily a bar to the relief requested. (See, generally Matter of Liberman, 6 Misc. 2d 396, rev'd on other grounds, 4 AD 2d 512, aff'd, 5 NY 2d 719; Matter of Levy, 168 Misc. 864.)

Respondent's third argument, the insufficient documentation, requires that the cross-motion be granted. However, because the court is persuaded that, under the particular circumstances presented here, inequity would result from the dismissal of the petition with prejudice, the petition is dismissed without prejudice to its renewal upon proper papers, which shall include certified copies of the respective divorces of petitioner and Mr. Adams.

Petitioner must on any renewal, in addition, continue the commendable practice of serving by mail copies of all papers upon Mr. Adams.

Petitioner may, if so advised, request that the renewed petition be referred to this court.

This constitutes the decision and judgment of the court.