Gelep v. Gelep

52 Misc. 2d 64, 275 N.Y.S.2d 68, 1966 N.Y. Misc. LEXIS 1331

Opinion

Lawrence H. Cooke, J.

In this action for an annulment, plaintiff moves “ for an order striking out defendant’s answer, and directing the entry of summary judgment for plaintiff upon the cause of action set forth in the complaint.”

In a matrimonial action, which includes one for annulment (CPLR 105, subd. [m]), a motion for summary judgment is available only to the defending party, based on documentary evidence or official records which establish the defense to the cause of action sufficiently to warrant the court as a matter of law in directing judgment, and the party seeking matrimonial relief cannot obtain it by summary judgment, even if he has documentary proof (CPLR 3212, subd. [d]; Jones v. Jones, 25 A D 2d 426, 427; Denberg v. Frischman, 24 A D 2d 100, affd. 17 N Y 2d 778; Roberts v. Roberts, 47 Misc 2d 41, 42-43; Brandstadter v. Brandstadter, 193 N. Y. S. 2d 687; Wachtell, New York Practice Under the CPLR, p. 175; 6 Carmody-Wait, New York Practice 2d, § 39:6; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3212.08; Boardman’s New York Family Law, pp. 659-660). Motion denied.