Zientara v. Zientara

Appellate Division of the Supreme Court of New York

Zientara v. Zientara

32 A.D.2d 822, 302 N.Y.S.2d 294, 1969 N.Y. App. Div. LEXIS 3711

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 18, 1969

StatusPublished

This text of 32 A.D.2d 822 (Zientara v. Zientara) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zientara v. Zientara, 32 A.D.2d 822, 302 N.Y.S.2d 294, 1969 N.Y. App. Div. LEXIS 3711 (N.Y. Ct. App. 1969).

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Opinion

In an action for divorce, plaintiff appeals from a judgment of the Supreme Court, Nassau County, dated March 27, 1969, which dismissed her complaint after a non jury trial. Judgment reversed, on the law, without costs, and new trial granted. The findings of fact below have not been affirmed. In 1959 plaintiff wife obtained a decree of separation from defendant husband. On September 19, 1968 the wife brought this action for divorce pursuant to subdivision (5) of section 170 of the Domestic Relations Law. In his answer, the husband admitted the allegations of the complaint and contested only the claims for alimony and a counsel fee. Nevertheless, the trial court dismissed the complaint, after trial, on the ground that subdivision (5) of section 170 (enacted in 1966) is not retroactive and does not apply where the separation decree was obtained prior to the enactment of this statute. In Schacht v. Schacht (32 [823]*823A D 2d 201) we have held that this statute is retroactive and does apply Where the separation decree was obtained prior to the statute’s enactment. Consequently, the dismissal of the complaint in this action, on the ground of nonretroactivity of the statute, was incorrect. The judgment must therefore be reversed and a new trial granted. Christ, Acting P. J., Brennan, Rabin, Benjamin and Martuscello, JJ., concur. [59 Misc 2d 344.]

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In an action for divorce, plaintiff appeals from a judgment of the Supreme Court, Nassau County, dated March 27, 1969, which dismissed her complaint after a non jury trial. Judgment reversed, on the law, without costs, and new trial granted. The findings of fact below have not been affirmed. In 1959 plaintiff wife obtained a decree of separation from defendant husband. On September 19, 1968 the wife brought this action for divorce pursuant to subdivision (5) of section 170 of the Domestic Relations Law. In his answer, the husband admitted the allegations of the complaint and contested only the claims for alimony and a counsel fee. Nevertheless, the trial court dismissed the complaint, after trial, on the ground that subdivision (5) of section 170 (enacted in 1966) is not retroactive and does not apply where the separation decree was obtained prior to the enactment of this statute. In Schacht v. Schacht (32 [823]*823A D 2d 201) we have held that this statute is retroactive and does apply Where the separation decree was obtained prior to the statute’s enactment. Consequently, the dismissal of the complaint in this action, on the ground of nonretroactivity of the statute, was incorrect. The judgment must therefore be reversed and a new trial granted. Christ, Acting P. J., Brennan, Rabin, Benjamin and Martuscello, JJ., concur. [59 Misc 2d 344.]

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Bluebook (online)

32 A.D.2d 822, 302 N.Y.S.2d 294, 1969 N.Y. App. Div. LEXIS 3711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zientara-v-zientara-nyappdiv-1969.

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