Bourjolly v. Mouscardy

85 A.D.3d 627, 925 N.Y.S.2d 821

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 2011
• Status: Published

Opinion

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered on or about January 10, 2011, which, after a hearing, granted defendant’s motion to dismiss the complaint on the ground that the residency requirement of Domestic Relations Law § 230 (5) had not been satisfied, unanimously affirmed, without costs.

Dismissal of this divorce action for failure to satisfy the two-year residency requirement of Domestic Relations Law § 230 (5) is warranted. Although the residency requirement of the statute is not jurisdictional in nature (see Lacks v Lacks, 41 NY2d 71, 73 [1976]; see also Casey v Casey, 39 AD3d 579, 579-580 [2007]), and is a substantive element of the cause of action to be proven at trial (see Rubin v Rubin, 73 AD2d 148, 150 [1980]), the issue may be resolved at a pretrial hearing “in the interest of economy of effort and sound judicial management” (Wilson v Wilson, 176 AD2d 115, 116 [1991]).

Although the parties’ entered into a stipulation providing, inter alia, that defendant would file any motion to dismiss by a certain date and the instant motion was filed after said date, the failure to file a timely motion did not constitute a waiver of the residence issue or an admission of the allegations in the complaint. Indeed, the record shows that following the deadline for a motion to dismiss, plaintiff continued to seek documentation establishing defendant’s address. Concur — Tom, J.P., Friedman, Acosta, Renwick and DeGrasse, JJ.