Rodgers v. Rodgers

Decision Date13 May 1968
Citation290 N.Y.S.2d 608,30 A.D.2d 548
PartiesThomas E. RODGERS, Appellant, v. Charlotte Breyer RODGERS, Respondent.
CourtNew York Supreme Court — Appellate Division

O'Brien, Driscoll, Raftery, Rosenbloom & Grainger, New York City, for plaintiff-appellant, Edmund C. Grainger, Jr., New York City, of counsel.

Kelley, Drye, Newhall, Maginnes & Warren, New York City, for defendant-respondent, Frederick T. Shea, Dale A. Schreiber, New York City, of counsel.

Before BRENNAN, Acting P.J., and RABIN, BENJAMIN, MUNDER and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

Appeal from two orders of the Supreme Court, Westchester County, dated June 26, 1967 and December 6, 1967, respectively, the former denying plaintiff's motion for a temporary injunction and the latter granting defendant's motion to dismiss the complaint. Orders affirmed, with one bill of $10 costs and disbursements.

The action is for a permanent injunction to enjoin plaintiff's wife from instituting any proceeding against plaintiff in any jurisdiction other than the State of New York which, Inter alia, may affect the parties' marital status. Plaintiff moved for a temporary injunction enjoining defendant from instituting any marital action, etc., in the State of Florida. In his affidavit submitted in opposition to defendant's subsequent motion to dismiss the complaint he requested that the relief sought by him in the action be modified so that defendant be restrained from proceeding in the State of Florida only.

Injunctive relief should not be granted permanently to prevent a defendant from establishing a bona fide residence in any sister state although one of its purposes is to institute an action for divorce (Young v. Young, 26 A.D.2d 956, 274 N.Y.S.2d 933). Furthermore, in our opinion a court is not authorized to enjoin a defendant from instituting a marital action in a particular sister state unless the out-of-state spouse has commenced such an action. Here the migratory wife had not actually instituted suit in an out-of-state court. We are familiar with the contrary rulings in Oltarsh v. Oltarsh, 181 Misc. 255, 43 N.Y.S.2d 901; Niver v. Niver, 200 Misc. 993, 111 N.Y.S.2d 889; and Boston v. Boston, 205 Misc. 561, 129 N.Y.S.2d 580; but we reject them as not controlling (see Garvin v. Garvin, 302 N.Y. 96, 96 N.E.2d 721; Hammer v. Hammer, 303 N.Y. 481, 104 N.E.2d 864; Pereira v. Pereira, 272 App.Div. 281, 70 N.Y.S.2d 763).

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6 cases
  • Orange County v. Metropolitan Transp. Authority
    • United States
    • New York Supreme Court
    • October 20, 1971
    ...and, since a preliminary injunction may not issue where the underlying action is dismissed (CPLR 6301; cf. Rodgers v. Rodgers, 30 A.D.2d 548, 549, 290 N.Y.S.2d 608, 610; 12 Carmody-Wait 2d, New York Practice, § 78:52), the motion for a preliminary injunction and related relief is Stewart Ai......
  • Bd. of Managers of Clinton W. Condo. v. Desmond
    • United States
    • New York Supreme Court
    • May 11, 2018
    ...not be granted unless a party has stated a prima facie cause of action which would justify a permanent injunction); Rodgers v. Rodgers, 30 A.D.2d 548, 549 (2d Dept. 1968), app. denied, 22 N.Y.2d 643 (1968); Scotto v Mei, 219 AD2d 181, 182 (1st Dept. 1996) (proof establishing "elements must ......
  • Graham v. Wisenburn
    • United States
    • New York Supreme Court — Appellate Division
    • July 6, 1972
    ...seeking it has stated a prima facie cause of action which would justify a permanent injunction (Id., § 78:15; Rodgers v. Rodgers, 30 A.D.2d 548, 549, 290 N.Y.S.2d 608, 610). Accordingly, the dispositive question is whether the respondents in the instant case have any basis in law to compel ......
  • an Article 75 Proceeding Uniformed Ems S Union v.
    • United States
    • New York Supreme Court
    • November 16, 2017
    ...not be granted unless a party has stated a prima facie cause of action which would justify a permanent injunction); Rodgers v. Rodgers, 30 A.D.2d 548, 549 (2d Dept. 1968), app. denied, 22 N.Y.2d 643 (1968); Scotto v Mei, 219AD2d 181, 182 (1st Dept. 1996)(proof establishing "elements must be......
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