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Nicit v. Nicit

181 A.D.2d 1046 Court N.Y. App. Div. Decision date 1992-03-13 Docket Appeal No. 1 English

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p. 1046
Anna M. Nicit, Appellant, v John J. Nicit, Respondent.
(Appeal No. 1.)

— Order and judgment unanimously affirmed without costs. Memorandum: Plaintiff appeals from so much of an order and judgment that granted defendant’s motion for summary judgment and dismissed plaintiff’s complaint for divorce alleging abandonment and cruel and inhuman treatment. Defendant cross-appeals from a resettled order and judgment insofar as it failed to impose sanctions against plaintiff for filing a frivolous lawsuit. The court properly dismissed plaintiff’s divorce complaint, brought on the same grounds as an earlier action that was dismissed at the end of

p. 1047
plaintiffs proof. Here plaintiff alleged that defendant abandoned her because he refused her offer to return to the marital residence on May 18, 1989. In the earlier divorce action, however, plaintiffs complaint alleging defendant’s abandonment was dismissed because it was determined that plaintiff abandoned defendant when she left the marital residence in August, 1986. Thus, since plaintiffs absence was not a temporary one and her offer to return was untimely, defendant had no duty to take her back and plaintiffs cause of action for abandonment was without merit (see, Solomon v Solomon, 290 NY 337 , 341-342; Bohmert v Bohmert, 241 NY 446 , 451-453; cf., Aghnides v Aghnides, 308 NY 530 , 532). Plaintiffs allegations of cruel and inhuman treatment are vague and conclusory and legally insufficient to state a cause of action given the high degree of proof required to terminate a marriage of long duration on that ground (see, Brady v Brady, 64 NY2d 339 ).

The court properly denied defendant’s application for sanctions. Defendant did not make a proper motion for such relief (see, CPLR 2214, 2215; 22 NYCRR 130-1.1 [d]) and, in any event, did not establish that plaintiffs action was frivolous as defined by the statute (see, CPLR 8303-a [c]; 22 NYCRR 130-1.1 [c]; cf., Mitchell v Herald Co., 137 AD2d 213 , 218-219). (Appeal from Order and Judgment of Supreme Court, Seneca County, Falvey, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Lawton and Doerr, JJ.

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