Opinion
June 2, 1980
In a matrimonial action, the plaintiff wife appeals from an order of the Supreme Court, Westchester County, dated January 28, 1980, which, inter alia, granted defendant's motion to dismiss the action on the ground of res judicata. Order affirmed, without costs or disbursements, and without prejudice to the commencement of a new action for divorce predicated upon events which occurred after the trial of plaintiff's original action for divorce. The plaintiff wife previously brought an action for divorce on the ground of cruel and inhuman treatment. On appeal, this court reversed that part of the judgment which granted a divorce in favor of plaintiff, holding that the evidence adduced at trial failed to establish a course of conduct sufficient to satisfy the requirements of subdivision (1) of section 170 Dom. Rel. of the Domestic Relations Law (see Jorgensen v. Jorgensen, 67 A.D.2d 958). All the allegations of cruel and inhuman treatment in the complaint herein concern acts which occurred prior to the date of the first trial and, hence, either were or could have been raised at that trial. Hence, the instant complaint was properly dismissed on the ground of res judicata. If any event upon which a judgment for divorce could be predicated has occurred subsequent to that trial, plaintiff may institute a new action based thereon. Hopkins, J.P., Damiani, Martuscello and Weinstein, JJ., concur.