For the lawyers out there, when you graduated law school, did you know what the terms “with prejudice” or “without prejudice” meant? I did not.
I do recall reading cases on “res judicata” and “collateral estoppel” in Civil Procedure class; however, both concepts were taught in such an amorphous manner it was hard to understand what they meant, in practice.
The Honorable Aaron D. Maslow’s recent decision in M.H. v. S.A., 2025 NY Slip Op 51713(U) (Sup. Ct., Kings Cty. 2025) explains all of these concepts in a manner that provides clarity. The decision also addresses New York City’s Gender-Motivated Violence Act (GMVA), which to my mind is relevant to the practice of divorce law.
In M.H., the parties started a romantic relationship in 2008. They began living together in 2010 and registered as domestic partners. They share one child born in 2013.
The plaintiff-mother alleged that the defendant-father engaged in “escalating controlling and abusive behavior” including “yelling, blocking her movements, and physically restraining her.” In one instance, the mother alleged that the father “screamed at her until she lost consciousness” and that he “monitored her communications” and “accused her of ‘whoring around’ when she was with her male friends.”
After their child was born, the parties relocated from New York to Massachusetts where they both worked for MIT. There, the mother alleged that the father “controlled their joint finances, threatened her about losing her job, and later defunded her position.”
The decision recounts several other alleged incidents of abuse, in multiple states, including one incident where the father allegedly “dragged their child by the hood of a jacket” in March 2016, followed by pushing the mother onto a bed and choking her in December 2016, and then another incident in June 2018 when the father allegedly confronted the mother “about a custody agreement and physically restrained her when she refused to sign it.”
The mother also alleged that the father initiated “non-consensual sexual contact while she pretended to be asleep,” did not disclose condom removal during sexual intercourse (“stealthing”) and that the father “would often call her a ‘bitch’ or ‘cunt’ while strangling her.” All together, the mother stated that these experiences contributed to her PTSD diagnosis.
In September 2018, the mother filed a complaint seeking an order of protection. In October 2023, the mother commenced the action at issue in M.H., and then in November 2023, the mother filed a family offense petition in Kings County Family Court (all proceedings alleged similar allegations).
The allegations in the family offense petition were withdrawn “with prejudice” in May 2024. At issue in M.H. is the father’s motion to dismiss the mother’s amended complaint seeking relief based on claims of battery under the Adult Survivor’s Act (ASA) and violation of the GMVA.
First with respect to the GMVA, pleading a claim under that statute involves setting forth a misdemeanor or felony act that was perpetrated in part because of the injured party’s gender. As to “whether the use of a gendered term can support a claim under the GMVA, there is no binding authority on this issue before this court. However, there is consensus among the U.S. District Court, Southern District of New York and the First Department that the pleading of a GMVA cause of action requires that the use of a gendered term while assaulting plaintiff can create the inference that the defendant committed the act at least in part based on the plaintiff’s gender.” With that in mind, the court concluded that the mother’s GMVA claim was sufficiently pleaded:
Plaintiff’s allegations here…—specifically, being called a ‘bitch’ and ‘cunt’ during strangling episodes and the use of explicitly gendered terms during acts of physical violence support an inference that the conduct was motivated at least in part by gender-based animus…The GMVA-covered incidents did not occur in a vacuum—Plaintiff was also called a ‘bitch’ and a ‘cunt,’ and was accused of ‘whoring around.’
Switching focus to civil procedure now, the court found that collateral estoppel did not bar the mother’s claims arising from an incident in October 2023 where it was alleged that the father came to the mother’s house during her parenting time, and refused to leave for approximately one hour (despite the mother’s requests), prompting her to file a police report.
Collateral estoppel requires the moving party to demonstrate “that the issue in the current action is identical to one that was previously raised, necessarily decided, and material to a final judgment in a prior proceeding, and that the opposing party had a full and fair opportunity to litigate that issue.”
While the family offense petition was withdrawn with prejudice, the claim regarding the October 2023 incident “was never actually litigated or determined on the merits.” Translation: “the withdrawal with prejudice does not constitute a full and fair opportunity to litigate and does not preclude Plaintiff from raising the issue in the present civil proceeding.”
Similarly, the court held that res judicata did not bar the mother’s GMVA claims. As to res judicata, that doctrine “bars litigation of claims arising out of the same transaction or series of transactions as a prior action” provided that the prior action involved the same parties and resulted in a final adjudication on the merits. The decision distinguishes the relief sought in the family offense petition from that sought in the civil proceeding, as follows:
Here, the Family Offense Petition requested relief in the form of a full stay-away order, a protective measure focused on immediate safety. It did not encompass the specific allegations of abuse or sexual misconduct now being raised. The current civil action seeks monetary damages and accountability for past harm under the ASA and GMVA, which are separate legal remedies that are not foreclosed by the prior proceeding.
While a dismissal “with prejudice” certainly has teeth, the M.H. decision is a clear reminder that there are laws in place to address allegations of domestic violence that go beyond the enumerated crimes in a family offense petition. The byzantine doctrines of res judicata and collateral estoppel do not automatically prevent our courts from addressing those allegations.
"Divorce Law and Civil Procedure: The Dynamic Duo," by Alan R. Feigenbaum was published in the New York Law Journal on December 11, 2025.
Reprinted with permission from the December 11, 2025, edition of the New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
