Sommer v. Sommer

16 A.D.2d 629, 226 N.Y.S.2d 730, 1962 N.Y. App. Div. LEXIS 10255

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1962
• Status: Published

Opinion

Order, entered on November 10, 1961, granting defendant’s motion to dismiss the first and third causes of action pursuant to rule 107 of the Rules of Civil Practice, unanimously modified, on the law and in the exercise of discretion, to the extent of granting plaintiff leave to amend her complaint and in any event without prejudice to her bringing another action in this or any other jurisdiction if so advised, and, as so modified, affirmed, without costs. We are constrained to uphold the dismissal of the causes of action seeking declaratory judgment to the effect that the decree of divorce issued in Alabama is null and void and seeking other relief as well (see Senor v. Senor, 272 App. Div. 306, affd. 297 N. Y. 800). It may be, however, that there are additional facts which could be pleaded by plaintiff that will cure the defects in the present complaint or that she may be able to obtain similar or related relief in another jurisdiction. Concur — Botein, P. J., Breitel, Rabin, McNally and Eager, JJ. [31 Misc 2d 826.]