Kapchan v. Kapchan

93 A.D.2d 880, 461 N.Y.S.2d 419, 1983 N.Y. App. Div. LEXIS 17760

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 1983
• Status: Published

Opinion

— Appeal by plaintiff from an order of the Supreme Court, Queens County (Goldstein, J.), dated February 16, 1982, which dismissed the plaintiff’s first cause of action for a divorce on the ground of cruel and inhuman treatment for failure to state a cause of action and which dismissed the plaintiff’s second cause of action for necessaries, without prejudice to renew said second cause of action “upon proper factual allegations”. Order modified, on the law, by adding to the first decretal paragraph after the word “dismissed”, the words “with leave to replead”. As so modified, order affirmed, without costs or disbursements. While in our view proof of the facts as pleaded would be sufficient to state a cause of action for divorce on the basis of cruel and inhuman treatment (Domestic Relations Law, § 170, subd [1]), the fact remains that the complaint fails to comply with the pleading requirements of CPLR 3016 (subd [c]). That section requires, inter alia, that the time and place of each act complained of must be specified- in the complaint. Inasmuch as the instant marriage is of more than 20 years’ duration, the plaintiff’s allegations of misconduct which begin with the phrase “[throughout the period of the marriage” do not comply with the statutory requirements. Accordingly, the first cause of action should be dismissed but plaintiff should be allowed to replead (see 3 Weinstein-KornMiller, NY Civ Prac, par 3016.10). Lazer, J. P., Gibbons, Weinstein, and Niehoff, JJ., concur.