(Download) "Theodora Berger v. Martin Berger" by Supreme Court of New York * Book PDF Kindle ePub Free
eBook details
- Title: Theodora Berger v. Martin Berger
- Author : Supreme Court of New York
- Release Date : January 13, 1981
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
Description
In a divorce action, plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered March 30, 1981, which granted defendants motion to dismiss plaintiffs complaint pursuant to CPLR 3211 (subd [a], par 4) and denied, as academic, plaintiffs cross motion, pursuant to CPLR 602, for a joint trial of the actions pending between the parties. Order reversed, with $50 costs and disbursements, defendants motion is denied, plaintiffs complaint is reinstated, and plaintiffs cross motion, pursuant to CPLR 602, for a joint trial of the two actions for divorce pending between the parties is granted. In February, 1980 defendant commenced an action for divorce against plaintiff on the ground of adultery. In her answer to that complaint plaintiff alleged adultery as an affirmative defense, and asserted a counterclaim "In the Nature of a Special Proceeding for Support and Maintenance". In that counterclaim, she asserted that defendant had abandoned her on or about August 18, 1978. Thereafter, in August, 1980, plaintiff commenced the instant action for divorce, on the ground of adultery alleged in her affirmative defense to defendants action for divorce, and on the ground of abandonment continuously from August 18, 1978. Defendant moved to dismiss the plaintiffs complaint pursuant to CPLR 3211 (subd [a], par 4) because "the causes of action alleged therein are virtually identical to the affirmative defense and counterclaim contained in [plaintiffs] previously submitted answer." Plaintiff cross-moved, pursuant to CPLR 602, for an order directing a joint trial of the actions pending between the parties. In the order appealed from, entered March 30, 1981, Special Term granted defendants motion to dismiss plaintiffs action for divorce, and denied as academic plaintiffs cross motion for a joint trial. We reverse. The fact that there was another matrimonial action pending between the parties, and that plaintiff had asserted defendants alleged adultery as an affirmative defense to that action, did not preclude her from commencing a separate action for divorce (see Valladares v Valladares, 80 A.D.2d 244; Urbanski v Urbanski, 107 Misc. 2d 215; Davis v Davis, 150 NYS 636). Further, her counterclaim in the prior action, "In the Nature of a Special Proceeding for Support and Maintenance", is not a "matrimonial action" as defined in section 236 (part B, subds 2, 5) of the Domestic Relations Law, and is not for the same or substantially the same relief demanded in plaintiffs action for divorce (see Kent Dev. Co. v Liccione, 37 N.Y.2d 899; Gregory v Wilkes, 26 Misc. 2d 641). Therefore, that counterclaim cannot be considered "another action pending between the same parties for the same cause of action", which could justify dismissal of her cause of action for divorce [84 A.D.2d 545 Page 546]