Opinion
January 31, 1983
In a matrimonial action, plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Christ, J.), dated August 2, 1982, as granted that part of defendant's motion which was for summary judgment dismissing the complaint. Order modified by deleting the provision granting that part of defendant's motion which was for summary judgment dismissing the complaint and substituting therefor a provision denying said motion in its entirety. As so modified, order affirmed, insofar as appealed from, with $50 costs and disbursements to the plaintiff. Special Term erred in granting summary judgment on the ground that a judgment entered July 7, 1980 dismissing, with prejudice and on consent, plaintiff's earlier action for a separation based on abandonment, precluded, on res judicata principles, plaintiff's instant action for divorce based on abandonment, which was commenced in September, 1980. No findings of fact adverse to plaintiff were made in the previous adjudication; therefore, the specific grounds for denying her relief in that action were not established by that judgment (cf. O'Leary v. O'Leary, 256 App. Div. 130). Since the record does not show that the pleadings were conformed to the proof at the trial of the earlier action in spring, 1980, at which point it was conceded that defendant had not returned to the marital home after leaving it in February, 1978, the cause of action thus adjudicated was limited to the facts contained in the separation complaint, namely, defendant's absence during February through May of 1978. Plaintiff was therefore not precluded from bringing a subsequent action based on defendant's continued absence from the marital home after May, 1978. Defendant's motion, inter alia, for summary judgment must, accordingly, be denied. Gulotta, J.P., O'Connor, Brown and Boyers, JJ., concur.