Bomer v. Dean

Decision Date17 June 2021
Docket Number150,CA 20-00801
Citation151 N.Y.S.3d 287,195 A.D.3d 1518
Parties Robert Randall BOMER, in Substitution for Joyce B. Dean, Deceased, Plaintiff-Respondent, v. David F. DEAN, M.D., Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

195 A.D.3d 1518
151 N.Y.S.3d 287

Robert Randall BOMER, in Substitution for Joyce B. Dean, Deceased, Plaintiff-Respondent,
v.
David F. DEAN, M.D., Defendant-Appellant.

150
CA 20-00801

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 17, 2021


MICHAEL STEINBERG, ROCHESTER, FOR DEFENDANT-APPELLANT.

ALLEN & O'BRIEN, ROCHESTER (STUART L. LEVISON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

195 A.D.3d 1518

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is denied, and those parts of the cross motion seeking to dismiss the claims for spousal support under article 4 of the Family Court Act ancillary to and prosecuted under Index No. 2014/3166 and for attorneys’ fees under Index Nos. 2016/7447 and 2014/3166 are granted.

Memorandum: Defendant and Joyce B. Dean (decedent) were married in 1997. Although they had no children together, decedent had two children from a prior marriage, one of whom is plaintiff. Defendant and decedent moved from Texas to Monroe County in March 2013. Shortly thereafter, decedent visited plaintiff in Texas, but never returned. A few months later, she removed defendant as her power

151 N.Y.S.3d 289

of attorney, appointing plaintiff in defendant's stead. In March 2014, decedent commenced a divorce action against defendant. In July 2016, Supreme Court dismissed most of the 2014 divorce action on jurisdictional grounds and converted the remaining aspects of that action—i.e., requests for maintenance, medical and dental coverage, and medical expenses—into a spousal support proceeding under Family Court Act article 4 (2014 support action).

Shortly thereafter, decedent commenced another divorce action

195 A.D.3d 1519

(2016 divorce action) that was practically identical to the action commenced in 2014. In May 2019, decedent died while both the 2016 divorce action and the 2014 support action were still pending. Several months later, decedent's attorney moved to substitute plaintiff—who served as decedent's executor in a probate proceeding in Texas—as plaintiff in both the 2014 support and the 2016 divorce actions so that he could pursue decedent's claims for retroactive spousal support and attorneys’ fees. Defendant opposed the motion and made an oral cross motion to dismiss the claims for retroactive spousal support and attorneys’ fees in the 2014 support and 2016 divorce actions, which he maintained had both abated upon decedent's death. In his written cross motion, he also sought, inter alia, sanctions against decedent's estate pursuant to 22 NYCRR 130-1.1. Defendant appeals from an order insofar as it effectively granted the motion to substitute plaintiff in both actions and denied those parts of the cross motion with respect to decedent's claims for spousal support under Family Court Act article 4 and attorneys’ fees in both actions, and we reverse the order to that extent.

We agree with defendant that, under the circumstances of this case, both the 2014 support action and the 2016 divorce action abated upon decedent's death, precluding the court from taking any further measures in either action. It is well settled that a divorce action abates upon the death of either party to the action because the marital relationship ceases to exist at that time (see Cornell v. Cornell , 7 N.Y.2d 164, 169, 196 N.Y.S.2d 98, 164 N.E.2d 395 [1959], rearg denied 7 N.Y.2d 995, 199 N.Y.S.2d 1027, 166 N.E.2d 519...

To continue reading

Request your trial
2 cases
  • People v. Darwish
    • United States
    • New York Supreme Court — Appellate Division
    • 17 Junio 2021
  • Rote v. Gibbs
    • United States
    • New York Supreme Court — Appellate Division
    • 17 Junio 2021

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT