Majority
—Judgment unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings. Memorandum: Although the parties consented to a divorce based upon the verified complaint and defendant withdrew his answer, Supreme Court erred in awarding plaintiff a judgment of divorce on the ground of cruel and inhuman treatment. A judgment of divorce may be entered on consent “only upon competent oral proof or upon written proof that may be considered on a motion for summary judgment” (Domestic Relations Law § 211). There was no oral proof in this case, nor any written proof other than the verified complaint. While CPLR 105 (u) permits the use of a verified pleading as an affidavit, the verified complaint here lacks the necessary evidentiary detail (see, Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § C211:6, at 751; cf., Kellerman v Kellerman, 187 AD2d 906 , 907).
Because the divorce was improperly granted, the marital property is not subject to equitable distribution (see, Domestic Relations Law § 236 [B] [5] [a]-; Gulisano v Gulisano, 214 AD2d
Cases cited
- Kellerman v. Kellerman 187 AD2d 906 at 907 p. 1142
- Sorge v. Sorge 238 AD2d 890 p. 1143
- James v. James 202 AD2d 1006 p. 1143
- Hanford v. Hanford 91 AD2d 829 p. 1143
- Matisoff v. Dobi 90 NY2d 127 p. 1143