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Patricia P. Tuper, Plaintiff-Respondent v. Kenneth E. Tuper

June 8, 2012

PATRICIA P. TUPER, PLAINTIFF-RESPONDENT,
v.
KENNETH E. TUPER, DEFENDANT-APPELLANT.



Appeal from an order of the Supreme Court, Ontario County (William F. Kocher, A.J.), entered July 5, 2011 in a divorce action.

The opinion of the court was delivered by: Lindley, J.

Tuper v Tuper

Decided on June 8, 2012

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

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

OPINION AND

The order denied the amended motion of defendant to dismiss the complaint.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Opinion by Lindley, J.: In this matrimonial action, defendant husband appeals from an order adopting the amended report of the Referee and 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 (see Domestic 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 marital residence and commenced a divorce action based on allegations of cruel and inhuman treatment. Defendant opposed the divorce and, following a non-jury 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 generally CPLR 3211 [a] [7]; Goldin v Engineers Country Club, 54 AD3d 658, 659-660, lv dismissed in part and denied in part 13 NY3d 763), 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 AD3d 1255, 1256, quoting Leon v Martinez, 84 NY2d 83, 88; see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636; Thomas v Thomas, 70 AD3d 588, 591). Here, the affidavit submitted by defendant in support of his amended motion to dismiss cured any alleged pleading defects in the complaint. Defendant stated that he and plaintiff have been separated since 1996 and that they have not communicated with each other within the past five years. Those allegations, accepted as true, clearly establish that the parties' relationship has been irretrievably broken for far more than the required six months, which leads us to defendant's remaining contention with respect to the statute of limitations.

We agree with defendant that a cause of action under the no-fault statute is subject to the five-year limitations period set forth in Domestic Relations Law § 210. We do not agree with defendant, however, that this action is time-barred inasmuch as plaintiff failed to commence it within five years of the date that the parties' relationship initially became irretrievably broken. In our view, a cause of action for divorce under the no-fault statute should be treated similarly to a cause of action for divorce based upon imprisonment of a spouse (see § 170 [3]), which is also governed by the five-year statute of limitations set forth in section 210. In Covington v Walker (3 NY3d 287, 291, rearg denied 4 NY3d 740, cert denied 545 US 1131), the Court of Appeals held that a cause of action for divorce based on imprisonment "continues to arise anew for statute of limitations purposes on each day the defendant spouse remains in prison for three or more consecutive years' until the defendant is released." Like a spouse serving a life sentence, an irretrievable breakdown in a married couple's relationship is a continuing state of affairs that, by definition, will not change. After all, the breakdown is ...


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