Tuper v. Tuper

OPINION OF THE COURT

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

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 [2008], lv dismissed in part and denied in part 13 NY3d 763 [2009]), 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 [2005], quoting Leon v Martinez, 84 NY2d 83 , 88 [1994]; see Rovello v Orofino Realty Co., 40 NY2d 633 , 635-636 [1976]; Thomas v Thomas, 70 AD3d 588 , 591 [2010]). 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

We note that a contrary ruling would force a spouse such as plaintiff “to unwillingly remain in a dead marriage” (Covington, 3 NY3d at 291 ). Indeed, if the accrual date of a no-fault cause of action were to be determined as defendant suggests so as to arise only on the day that the relationship initially became irretrievably broken, assuming that an exact date could even be pinpointed, the only couples who could get divorced under the no-fault statute would be those whose relationships irretrievably broke down within the past five years but not within the last six months. Couples whose relationships irretrievably broke down more than five years ago would have to remain married. That is inconsistent with the general intent of the Legislature in enacting the no-fault statute, which was to “enable[ ] parties to legally end a marriage which is, in reality, already over and cannot be salvaged” (Senate Introducer’s Mem in Support, Bill Jacket, L 2010, ch 384, at 13, 2010 McKinney’s Session Laws of NY, at 1957).

We further note that the purpose of the statute of limitations is “to afford protection to defendants against defending stale claims after a reasonable period of time had elapsed during which a person of ordinary diligence would bring an action”