                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 16, 2014                   517354
________________________________

In the Matter of STARLA D.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JEREMY E.,
                    Appellant.
________________________________


Calendar Date:   September 12, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

                             __________


     Jeremy Bogosian, Clifton Park, for appellant.

      Stephen M. Dorsey, County Attorney, Ballston Spa (Michael
J. Hartnett of counsel), for respondent.

     Heather Corey-Mongue, Ballston Spa, attorney for the child.

                             __________


Egan Jr., J.

      Appeals (1) from two orders of the Family Court of Saratoga
County (Howley, S.M.), entered August 22, 2013, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 5-B, to determine paternity of a child born to
petitioner and for an award of child support, and (2) from an
order of said court (Jensen, J.), entered October 11, 2013, which
denied respondent's objections to said orders.

      In December 2001, petitioner, a resident of Alabama,
commenced a proceeding in the Juvenile Division of the District
Court of Colbert County, Alabama (hereinafter the Alabama court)
against respondent, a New York resident, alleging that respondent
was the biological father of the subject child (born in 2001) and
                              -2-                517354

seeking an award of child support. Respondent, appearing pro se,
answered and thereafter underwent DNA testing. Petitioner, who
did not complete her portion of the DNA testing, subsequently
moved to dismiss the proceeding "with prejudice" and, in July
2004, the Alabama court granted her request.

      Thereafter, in January 2011, petitioner commenced the
instant proceeding against respondent pursuant to the Uniform
Interstate Family Support Act (see Family Ct Act art 5-B),
seeking to establish paternity and, in conjunction therewith, an
award of child support. Respondent moved to dismiss the petition
contending, among other things, that the proceeding was barred by
res judicata and/or equitable estoppel. A Support Magistrate
transferred the matter to Family Court for a hearing as to the
equitable estoppel defense and, at the conclusion thereof, Family
Court, among other things, dismissed respondent's equitable
estoppel defense. Upon respondent's appeal from that order, this
Court affirmed (95 AD3d 1605 [2012], lv dismissed 19 NY3d 1015
[2012]).

      Following another unsuccessful motion to dismiss based upon
similar grounds, respondent answered and moved for summary
judgment, again contending that this proceeding was barred by res
judicata and equitable estoppel. When a Support Magistrate
denied respondent's motion, respondent unsuccessfully moved for
reconsideration and thereafter filed objections to the Support
Magistrate's order. Family Court denied respondent's objections
and sanctioned respondent's counsel in the amount of $1,000 for
frivolous motion practice.

      In the interim, a hearing upon the underlying petition
commenced. Thereafter, by orders entered August 22, 2013, the
Support Magistrate rejected respondent's affirmative defenses
and, based upon the evidence adduced at the hearing, issued the
requested order of filiation and awarded child support.
Respondent filed objections to the Support Magistrate's orders
and, by order entered October 11, 2013, Family Court dismissed
such objections and affirmed the Support Magistrate's orders in
their entirety. These appeals by respondent ensued.
                              -3-                517354

      The crux of respondent's argument upon appeal is that
Family Court erred in failing to apply the Full Faith and Credit
Clause (see US Const, art IV, § 1) and principles of res judicata
to bar petitioner from maintaining the instant proceeding. "In
New York, res judicata, or claim preclusion, bars successive
litigation based upon the same transaction or series of connected
transactions if: (i) there is a judgment on the merits rendered
by a court of competent jurisdiction, and (ii) the party against
whom the doctrine is invoked was a party to the previous action
[or proceeding], or in privity with a party who was" (Matter of
People v Applied Card Sys., Inc., 11 NY3d 105, 122 [2008], cert
denied 555 US 1136 [2009] [internal quotation marks and citations
omitted]; see Gomez v Brill Sec., Inc., 95 AD3d 32, 35 [2012]).1

      Here, there is no dispute that the Alabama proceeding
involved the same parties and underlying issues, i.e., paternity
and child support. Additionally, under both Alabama and New York
law, a dismissal "with prejudice" indeed constitutes an
adjudication "on the merits" (see Matter of Coleman v Coleman, 1
AD3d 833, 834 [2003]; Gonzalez, LLC v DiVincenti, 844 So 2d 1196,
1203 [Ala 2002]). Further, there is no question that the Alabama
court had subject matter jurisdiction over the paternity and
support proceeding. Accordingly, the only remaining issue is
whether the Alabama court acquired personal jurisdiction over
respondent.

      Personal jurisdiction is – under both New York and Alabama
law – a waivable defense (see CPLR 3211 [a] [8]; [e]; Alabama
Rules of Civ Proc rule 12 [h] [1]). In this regard, although
respondent raised lack of personal jurisdiction in his pro se
answer, respondent testified at the paternity hearing that he did
so only to avoid entry of a default judgment against him, and
that he expressly advised the Alabama court that if there was


    1
        Although we are of the view that New York law applies
here (see Family Ct Act §§ 580-101 [16], [17]; 580-303 [1]; 580-
701 [b]), the choice of law issue need not detain us, as the
elements of the doctrine of res judicata are the same under New
York and Alabama law (see e.g. Bradberry v Carrier Corp., 86 So
3d 973, 986 [Ala 2011]).
                                -4-                  517354

going to be "a hearing with genetic testing that [he] would be a
full participant." Respondent further testified that when the
Alabama court declined to dismiss the proceeding for improper
service, he affirmatively requested that he be allowed to undergo
genetic testing in New York, that the Alabama court granted his
request and that he subsequently underwent such testing. Under
these circumstances, we are satisfied that respondent not only
waived his right to assert that the Alabama court lacked personal
jurisdiction over him but, indeed, expressly consented thereto.
Accordingly, as all of the elements of res judicata are present,
Family Court erred in failing to dismiss petitioner's application
upon this ground.

      As a final matter, we agree that respondent's counsel was
not afforded adequate notice and opportunity to be heard prior to
Family Court imposing sanctions.2 In light of our conclusion
that the Alabama court proceeding is entitled to preclusive
effect here, the imposition of sanctions was unwarranted in any
event.

        Peters, P.J., Stein, Garry and Clark, JJ., concur.


      ORDERED that the orders are reversed, on the law, without
costs, and petition dismissed.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court


    2
        The appeal from Family Court's October 11, 2013 order
brings up for review the propriety of the sanctions imposed in
the prior intermediate order.
