Peress v. Peress

176 A.D.2d 191

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 24, 1991
• Status: Published

Opinion

— Order, Supreme Court, New York County (Walter Schackman, J.), entered on September 10, 1990, which, inter alia, denied defendant’s motion pursuant to CPLR 3211 (a) (7) and Domestic Relations Law § 210 for an order dismissing the plaintiff’s complaint on the ground that it fails to state a cause of action and on the ground that the action is time-barred, and order of the same court and Justice, entered on November 8, 1990, which granted plaintiff’s motion for additional pendente lite relief to the extent of awarding interim accounting fees in the amount of $5,000, unanimously affirmed, without costs.

In determining whether or not the plaintiff wife has adequately pleaded a cause of action for divorce on the basis of cruel and inhuman treatment (see, Domestic Relations Law § 170 [1]), the IAS court is permitted broad discretion in balancing the several factors in each case (Hessen v Hessen, 33 NY2d 406). We find that the IAS court did not err in determining that the complaint adequately alleges acts of cruel and inhuman treatment that form a continuous course of conduct extending into the five-year limitation period established in Domestic Relations Law § 210 (see, Grubman v Grubman, 156 AD2d 200).

The plaintiff wife sufficiently demonstrated a need for expert accounting assistance, and interim fees were appropriately awarded (see, Dzembo v Dzembo, 160 AD2d 1144). The issue of whether or not the defendant husband’s business is separate property (see, Price v Price, 69 NY2d 8) cannot be resolved on this record, and need not be resolved before interim accounting fees are awarded. Concur — Sullivan, J. P., Rosenberger, Wallach, Kupferman and Rubin, JJ.