Volkell v. Volkell

102 A.D.2d 889, 477 N.Y.S.2d 60, 1984 N.Y. App. Div. LEXIS 19116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 1984
• Status: Published

Opinion

— In an action for divorce, the plaintiff wife appeals from an order of the Supreme Court, Queens County (Beerman, J.), dated December 29,1983, which denied her motion to strike the defendant husband’s second affirmative defense, i.e., condonation. 11 Order reversed, on the law, with costs, and plaintiff’s motion to strike the defendant’s second affirmative defense granted. 11A careful review of the complaint indicates that it alleges only one ground for divorce, i.e., that defendant was guilty of cruel and inhuman treatment toward plaintiff based on, inter alia, admissions by defendant to plaintiff as to several adulterous relationships (see Fritz v Fritz, 88 AD2d 778). It is well settled that the affirmative defense of condonation cannot be interposed in matrimonial actions which are based on grounds other than adultery (Fritz v Fritz, supra; Ash v Ash, 53 AD2d 1039; cf. Pajak v Pajak, 56 NY2d 394). Since the instant divorce action is based solely on the ground of cruel and inhuman treatment of the plaintiff by defendant, Special Term erred in denying plaintiff’s motion to strike the defendant’s second affirmative defense. Titone, J. P., Lazer, Mengano and O’Connor, JJ., concur.