Greenfield v. Greenfield
| Decision Date | 06 February 1989 |
| Citation | 147 A.D.2d 440,537 N.Y.S.2d 558 |
| Parties | Evelyn M. GREENFIELD, Appellant, v. Charles M. GREENFIELD, Respondent. |
| Court | New York Supreme Court — Appellate Division |
William E. Morrissey, Miller Place, for appellant.
Taylor, Atkins & Ostrow, Garden City (Michael B. Atkins, of counsel), for respondent.
Before MANGANO, J.P., and BRACKEN, KUNZEMAN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action (1) for a judgment setting aside a prior separation agreement, and (2) for a judgment of divorce based on allegations of cruel and inhuman treatment and ancillary relief, the plaintiff wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Willen, J.), dated December 21, 1987, as granted the defendant's motion for summary judgment dismissing the first cause of action and to dismiss the second cause of action pursuant to CPLR 3016(c) on the ground that the allegations of cruel and inhuman treatment were insufficient.
ORDERED that on the court's own motion the plaintiff wife's notice of appeal is treated as an application for leave to appeal, that application is referred to Justice Bracken, and leave to appeal is granted by Justice Bracken; and it is further,
ORDERED that upon appeal by permission the order is modified, on the law, by deleting the provision thereof which dismissed the plaintiff wife's second cause of action, and substituting therefor a provision (1) denying the defendant husband's motion insofar as it was to dismiss the plaintiff wife's second cause of action, (2) severing the second cause of action, and (3) directing the defendant husband to serve an answer to the second cause of action contained in the plaintiff wife's amended complaint; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The defendant's time to answer the second cause of action asserted in the plaintiff's amended complaint is extended until 10 days after service upon him of a copy of this decision and order, with notice of entry.
The plaintiff wife commenced the present action by the service of a summons dated July 14, 1987, and a complaint. In her first cause of action she seeks a judgment setting aside a separation agreement entered into between the parties on October 2, 1986. In her second cause of action she seeks a judgment of divorce based on allegations of cruel and inhuman treatment, and ancillary relief.
The defendant husband, prior to serving an answer, made a motion for summary judgment dismissing the first cause of action, and to dismiss the second cause of action on the basis, inter alia, that the allegations were not sufficiently specific (see, CPLR 3016[c] ).
The plaintiff subsequently made a cross motion for permission to discontinue two prior divorce actions. Also, in connection with her opposition to the defendant's motion, the plaintiff served an amended complaint, in which her allegations of adultery are made with greater specificity.
In an order dated October 2, 1987, the Supreme Court granted the plaintiff's cross motion and denied the defendant's motion as "moot". No appeal was taken from that branch of the order which granted the cross motion. Shortly thereafter, the defendant's attorneys informally requested the court to reconsider its decision. This informal application was made by way of a letter, which was addressed to the Supreme Court Justice who decided the motion individually, and a copy of which was apparently sent to the attorneys for the plaintiff. The plaintiff's attorneys then also dispatched a letter to the court.
Based upon these letters, the Supreme Court, in an order dated December 2, 1987, modified its previous order (1) by granting summary judgment in favor of the defendant husband as to the first cause of action, and (2) by dismissing the plaintiff's second cause of action. This appeal followed.
The order under review in the present case was not the culmination of a motion made upon notice and is therefore not appealable as of right to this court (see, CPLR 5701[a][2]; Arslanian v. Volkswagen of Am., 121 A.D.2d 492, 504 N.Y.S.2d 13; Cohalan v. Johnson Elec. Constr. Corp., 105 A.D.2d 770, 481 N.Y.S.2d 714; Everitt v. Health Maintenance Center, 86 A.D.2d 224, 449 N.Y.S.2d 713; 7 Weinstein-Korn-Miller, NY Civ Prac p 5701.06, n. 49). However, in the interest of justice, and under the particular circumstances of this case, we treat the plaintiff's...
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