Okun v. Okun

New York Supreme Court

Okun v. Okun

41 Misc. 2d 244, 245 N.Y.S.2d 92, 1963 N.Y. Misc. LEXIS 1481

CourtNew York Supreme Court

DecidedOctober 29, 1963

StatusPublished

Cited by1 cases

This text of 41 Misc. 2d 244 (Okun v. Okun) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Okun v. Okun, 41 Misc. 2d 244, 245 N.Y.S.2d 92, 1963 N.Y. Misc. LEXIS 1481 (N.Y. Super. Ct. 1963).

Pincite

Opinion

John L. Flynn, J.

Defendant moves to dismiss the separation action pursuant to rule 3211 (subd. [a], par. 7) of the Civil Practice Law and Buies on the ground that the complaint fails to state a cause of action. The claimed legal insufficiency is predicated upon the fact that the complaint indicates that the parties have not separated and continue to reside in the same apartment. In the circumstances, and under the case law in this Department it would be “ contrary to public policy and incongruous to permit a judicial separation of parties who have not physically separated themselves ” (Baker v. Baker, 16 A D 2d 409, 410; Berman v. Berman, 277 App. Div. 560; Sommer v. Sommer, 285 App. Div. 809). Defendant’s contention would be valid were it not for the recent statutory changes in matrimonial actions and proceedings. Section 236 of the Domestic [245]*245Relations Law now provides for the granting of temporary and permanent alimony in a separation action ‘ ‘ notwithstanding that the parties continue to reside in the same abode ”. Implicit in such statute is the conclusion that a judicial separation may be decreed even if the parties have not separated themselves. Accordingly, the motion is denied.

Free access — add to your briefcase to read the full text and ask questions with AI

John L. Flynn, J.

Defendant moves to dismiss the separation action pursuant to rule 3211 (subd. [a], par. 7) of the Civil Practice Law and Buies on the ground that the complaint fails to state a cause of action. The claimed legal insufficiency is predicated upon the fact that the complaint indicates that the parties have not separated and continue to reside in the same apartment. In the circumstances, and under the case law in this Department it would be “ contrary to public policy and incongruous to permit a judicial separation of parties who have not physically separated themselves ” (Baker v. Baker, 16 A D 2d 409, 410; Berman v. Berman, 277 App. Div. 560; Sommer v. Sommer, 285 App. Div. 809). Defendant’s contention would be valid were it not for the recent statutory changes in matrimonial actions and proceedings. Section 236 of the Domestic [245]*245Relations Law now provides for the granting of temporary and permanent alimony in a separation action ‘ ‘ notwithstanding that the parties continue to reside in the same abode ”. Implicit in such statute is the conclusion that a judicial separation may be decreed even if the parties have not separated themselves. Accordingly, the motion is denied.

Cite This Page — Counsel Stack

Bluebook (online)

41 Misc. 2d 244, 245 N.Y.S.2d 92, 1963 N.Y. Misc. LEXIS 1481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/okun-v-okun-nysupct-1963.

Opinion

Related

Cite This Page — Counsel Stack