Dunn v. Dunn

Appellate Division of the Supreme Court of New York

Dunn v. Dunn

162 A.D.2d 433, 556 N.Y.S.2d 673, 1990 N.Y. App. Div. LEXIS 7032

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 4, 1990

StatusPublished

Cited by4 cases

This text of 162 A.D.2d 433 (Dunn v. Dunn) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dunn v. Dunn, 162 A.D.2d 433, 556 N.Y.S.2d 673, 1990 N.Y. App. Div. LEXIS 7032 (N.Y. Ct. App. 1990).

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Opinion

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Rigler, J.), dated May 27, 1988, as, upon granting his motion to dismiss the first cause of action asserted in the complaint, granted the plaintiff wife leave to replead that cause of action.

[434]*434Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the provision thereof granting the plaintiff leave to replead is deleted.

The plaintiff wife opposed the defendant husband’s motion pursuant to CPLR 3211 (a) (7) to dismiss her cause of action for a divorce on the ground of cruel and inhuman treatment only orally through counsel. The nature of that opposition is not set forth in the record and there is no indication that the plaintiff requested leave to replead or that she disclosed evidentiary facts which would justify the granting such a request (see, CPLR 3211 [e]; Bardere v Zafir, 63 NY2d 850; cf., Sanders v Schiffer, 39 NY2d 727). Under the circumstances, it was error for the Supreme Court to afford the plaintiff leave to replead the first cause of action. Sullivan, J. P., Harwood, Balletta and Miller, JJ., concur.

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In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Rigler, J.), dated May 27, 1988, as, upon granting his motion to dismiss the first cause of action asserted in the complaint, granted the plaintiff wife leave to replead that cause of action.

[434]*434Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the provision thereof granting the plaintiff leave to replead is deleted.

The plaintiff wife opposed the defendant husband’s motion pursuant to CPLR 3211 (a) (7) to dismiss her cause of action for a divorce on the ground of cruel and inhuman treatment only orally through counsel. The nature of that opposition is not set forth in the record and there is no indication that the plaintiff requested leave to replead or that she disclosed evidentiary facts which would justify the granting such a request (see, CPLR 3211 [e]; Bardere v Zafir, 63 NY2d 850; cf., Sanders v Schiffer, 39 NY2d 727). Under the circumstances, it was error for the Supreme Court to afford the plaintiff leave to replead the first cause of action. Sullivan, J. P., Harwood, Balletta and Miller, JJ., concur.

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Bluebook (online)

162 A.D.2d 433, 556 N.Y.S.2d 673, 1990 N.Y. App. Div. LEXIS 7032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-dunn-nyappdiv-1990.

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