Weiss v. Weiss

138 A.D.2d 482, 526 N.Y.S.2d 402, 1988 N.Y. App. Div. LEXIS 2861

Opinion

In an action for a divorce and ancillary relief, the plaintiff wife appeals from an order of the Supreme Court, Suffolk County (Fierro, J.), dated May 19, 1987, which, sua sponte, dismissed her complaint for failure to state a cause of action.

Ordered that the order is reversed, with costs, and matter remitted to the Supreme Court, Suffolk County, to address the plaintiff’s motion to dismiss the defendant husband’s affirmative defenses and certain counterclaims.

After initiating an action for a divorce on the ground of cruel and inhuman treatment, in which the defendant’s answer contained affirmative defenses and counterclaims, the plaintiff moved pursuant to CPLR 3211 (a) and (b) to dismiss the affirmative defenses and a number of the counterclaims. Without addressing the relief sought by the plaintiff, the Supreme Court, sua sponte, dismissed the complaint for failure to plead a sufficient cause of action as a matter of law. A court has the authority to review the adequacy of the complaint sua sponte (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:40; see generally, CPLR 3211 [c]), particularly where the plaintiff does not indicate she had any further specific allegations to add to the complaint. The court erred, however, in concluding that the allegations of the complaint failed to state a cause of action for a divorce based on cruel and inhuman treatment (see, Bartal v Bartal, 117 AD2d 698; Pfeil v Pfeil, 100 AD2d 725; Bulger v Bulger, 88 AD2d 895). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur.