Lepastat v. Lepastat

• Decision Date: 02 February 1962
• Citation: 225 N.Y.S.2d 630
• Parties: Harriet LEPASTAT v. Irving LEPASTAT.
• Court: New York Supreme Court

Page 630

225 N.Y.S.2d 630

Harriet LEPASTAT v. Irving LEPASTAT.

Supreme Court, Special Term, Kings County, Part V.

Feb. 2, 1962.

Sahn, Shapiro & Epstein, New York City, for plaintiff.

Sweet, Reinitz, Peskin & Sweet, New York City, for defendant.

MURRAY T. FEIDEN, Justice.

In this action for separation brought by the wife on the ground of cruelty, the defendant husband moves for a dismissal of the complaint on two grounds, viz., (1) that the complaint is legally insufficient (Rules 106, 280, Rules of Civil Practice) and (2) that the plaintiff, having failed to interpose a counterclaim for separation in her favor in a prior separation action for abandonment which was brought by the husband, is barred from bringing the instant action based on cruel and inhuman treatment which allegedly occurred prior to commencement of the previous action and which formed the basis for the affirmative defense asserted by the wife in that action.

In the prior action, the determinative issue raised by the wife's affirmative defense was whether the husband's conduct had been such as to justify the wife's act of leaving him. It was not essential for the establishment of justification by the wife as a defense to that action and for a determination by the court sustaining such defense, that proof of the husband's misconduct reach the level of cruel and inhuman treatment such as would suffice to entitle the wife to a judgment of separation in her favor (Russ v . Russ, 3 A.D.2d 888, 161 N.Y.S.2d 696; McClinton v. McClinton, Sup., 200 N.Y.S.2d 987, 990; Williams v. Williams, 130 N.Y. 193, 197-198, 29 N.E. 98, 14 L.R.A. 220; Camp v. Camp, 21 Misc.2d 908, 916, 189 N.Y.S.2d 561, 568). Thus, the finding made by the court in the prior action, that the husband's conduct toward his wife rendered it unsafe and improper that the wife live and cohabit with him, was unnecessary to the disposition of the issues presented in that case for determination. It follows that the findings made in the prior action and the judgment there rendered are not conclusive upon the issue to be determined in the instant case of whether the husband has been guilty of cruel and inhuman treatment warranting the granting of a judgment of separation in the wife's favor (cf. Silberstein v. Silberstein, 218 N.Y. 525, 528-529, 113 N.E. 495, 496; Karameros v. Luther, 279 N.Y. 87, 91, 17 N.E.2d 779, 780).

Rule 280 of the Rules of Civil Practice provides that a complaint in an action for separation 'must specify particularly the nature and circumstances of the defendant's misconduct...