Tuper v. Tuper

• Decision Date: 08 June 2012
• Parties: Patricia P. TUPER, Plaintiff–Respondent, v. Kenneth E. TUPER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 55
946 N.Y.S.2d 719
2012 N.Y. Slip Op. 04467

Patricia P. TUPER, Plaintiff–Respondent,
v.
Kenneth E. TUPER, Defendant–Appellant.

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

June 8, 2012.

Barney & Affronti, LLP, Rochester (Francis C. Affronti of Counsel), for Defendant–Appellant.

Zimmerman & Tyo, Attorneys, Shortsville (John E. Tyo of Counsel), for Plaintiff–Respondent.

PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.

Opinion by LINDLEY, J.:

[98 A.D.3d 56]In this matrimonial action, defendant husband appeals from an order adopting the amended report of the Referee and

[946 N.Y.S.2d 720]

denying defendant's amended motion to dismiss the complaint, which asserted a single cause of action under the “no-fault divorce” statute based on an alleged irretrievable breakdown in the parties' relationship for a period of at least six months ( seeDomestic Relations Law § 170[7] ). In support of his amended motion, defendant contended that the complaint should be dismissed pursuant to CPLR 3211(a)(5) because the action was time-barred and pursuant to CPLR 3211(a)(7) because the complaint failed to comply with the pleading requirements of CPLR 3016(c). We conclude that Supreme Court properly denied defendant's amended motion.

The parties were married in 1973 and have been separated since November 1996, when plaintiff wife moved out of the [98 A.D.3d 57]marital residence and commenced a divorce action based on allegations of cruel and inhuman treatment. Defendant opposed the divorce and, following a nonjury trial, the court determined that plaintiff failed to establish grounds for the divorce and therefore dismissed the complaint with prejudice. In February 2011, approximately five months after the no-fault statute took effect, plaintiff commenced this action. The complaint alleges in conclusory fashion that the parties' relationship has been irretrievably broken for at least six months. No facts are alleged in support of that assertion. Defendant thus contends that the complaint fails to comply with CPLR 3016(c), which provides that, “[i]n an action for separation or divorce, the nature and circumstances of a party's alleged misconduct, if any, and the time and place of each act complained of, if any, shall be specified in the complaint....” We reject that contention. Because a cause of action for divorce under Domestic Relations Law § 170(7) does not require a showing of any “misconduct” by either party, the requirements of CPLR 3016(c) are inapplicable.

In any event, even assuming, arguendo, that a plaintiff seeking a divorce under the no-fault statute is required to plead facts sufficient to demonstrate that the marriage is broken down irretrievably rather than simply allege as much in conclusory terms ( see generallyCPLR 3211[a][7]; Goldin v. Engineers Country Club, 54 A.D.3d 658, 659–660, 864 N.Y.S.2d 43,lv. dismissed in part and denied in part13 N.Y.3d 763, 886 N.Y.S.2d 864, 915 N.E.2d 1160), we note that “ ‘[i]n assessing a motion under CPLR 3211(a)(7) ... a court may freely consider affidavits ... to remedy any defects in the complaint’ ” ( Parker v. Leonard, 24 A.D.3d 1255, 1256, 807 N.Y.S.2d 774, quoting Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635–636, 389 N.Y.S.2d 314, 357 N.E.2d 970;Thomas v. Thomas, 70 A.D.3d 588, 591, 896 N.Y.S.2d 30...