Justice Ellen Gesmer

BRONX COUNTY
Supreme Court


ORDER

Plaintiff D.M. (Wife) sues for divorce on the grounds that defendant S.N. (Husband) committed adultery by having sexual intercourse with Ms. G. on numerous occasions since April 2006.1 In his first Affirmative Defense, the Husband alleges that the Wife is barred from obtaining a divorce under DRL §171(4), because she herself committed adultery by engaging in a "ménage-a-trois" with the defendant and Ms. G. on various occasions between 2002 and 2004, and by engaging in "deviate sexual intercourse" with Ms. G. on various occasions during 2004. The matter is scheduled for a trial as to grounds on April 7, 8 and 9.2

On or about January 25, 2008, the Husband served a Notice to Admit. Twelve of the paragraphs demand admissions that the Wife engaged in sexual contact with Ms. G. Fifteen of the paragraphs demand admissions that the Wife and the Husband engaged in a "ménage-a-trois" with Ms. G.³

The Wife now moves for a protective order as to the Notice to Admit on the grounds that the issues as to which admissions are sought are at the heart of the lawsuit and therefore not a proper subject for a Notice to Admit, and that the Husband is improperly demanding that the Wife admit to criminal conduct. For the reasons set forth below, the court grants the motion for a protective order in all respects.⁴

Turning first to the demands for admissions as to the "ménage-a-trois," the court grants a protective order as to these statements for two reasons not raised by the Wife. First, a notice to admit may only seek an admission as to "the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial" (CPLR §3123). Therefore, a notice to admit is not proper when it includes a term that is not "clear cut," the meaning of which is thus subject to dispute (Taylor v. Blair, 116 AD2d 204, 206 [1st Dept 1986]). In this case, the term, "ménage-a-trois" is not defined, either by statute or in the Notice to Admit itself. The term is, in fact, subject to multiple dictionary definitions.⁵ Consequently, there may well be a dispute not only as to the facts but even as to the definition of the term being used, which renders the use of a Notice to Admit improper. Under these circumstances, it is certainly appropriate to grant a protective order.

Second, the Husband seems to be arguing that he, his Wife and Ms. G. engaged in joint sexual activities constituting what he terms a "ménage-a-trois," and that these activities constitute a defense to the Wife's claim for a divorce based on adultery. This argument is incorrect. Under DRL §171(4), adultery by the plaintiff is a defense to an action for adultery only "under such circumstances that the defendant would have been entitled, if innocent, to a divorce." However, even if it is true that the Wife engaged in sexual activities with the Husband and Ms. G. between 2002 and 2004, that would not have entitled the Husband to a divorce under DRL §171(2), because he apparently consented to these events, and continued to co-habit afterward, even though he clearly knew about the events. Consequently, as the Husband's allegations about a "ménage-a-trois" do not constitute a defense to the Wife's claim for adultery, they are irrelevant and not a proper subject of a Notice to Admit.

Turning to the allegations that the Wife engaged in sexual acts with Ms. G., the court rejects the Wife's argument that the Notice to Admit is improper because it would require her to admit criminal conduct. The court agrees that a demand may not require a party to admit to a crime (McCue v. McCue, 225 AD2d 975, 977 [3d Dept 1996]), because to do otherwise would require the Wife to incriminate herself in violation of her constitutional rights (US Const, 5th Amend; NY Const, Art 1, §6; see also DRL §211). However, Penal Law §255.17, the only statute which criminalizes adultery, only applies to engaging in "sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse."⁶ The definitions section, somewhat primly, merely states that "Sexual intercourse has its ordinary meaning and occurs upon any penetration, however slight" (Penal Law §130.00[1]). The statute then goes on to define oral sexual conduct with greater anatomical specificity. Since the Husband is clearly not accusing the Wife of having had sexual intercourse with Ms. G., he is not alleging that she was engaging in criminal conduct. Therefore, the Wife cannot claim the Fifth Amendment as a basis for refusing to respond to the Notice to Admit.

However, the court agrees with the Wife that the remaining statements in the Notice to Admit are at the heart of the dispute and therefore not proper for a Notice to Admit. "A notice to admit, pursuant to CPLR 3123 (a), is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, and not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial" (Hawthorne Group, LLC v. RRE Ventures, 7 AD3d 320, 324 [1st Dept 2004], citing Meadowbrook-Richman, Inc. v. Cicchiello, 273 AD2d 6 [1st Dept 2000]; see also Washington v. Alco Auto Sales, 199 AD2d 165 [1st Dept 1993]). Consequently, the court will grant a protective order as to these statements as well.

Accordingly, the plaintiff's motion for a protective order with regard to defendant's Notice to Admit is granted in all respects.⁷

This constitutes the decision and order of the Court.

Supreme CourtJusticeGesmer

1. The inclusion of these allegations are necessary only because New York is the only state which still requires allegations of fault as the basis for obtaining a divorce (see Report of the Matrimonial Commission to the Chief Judge of the State of New York, February 2006, at 18, available at www.nycourts.gov/reports/matrimonialcommissionreport.pdf).

2. While the vast majority of parties to divorce actions agree on a grounds for divorce and have an uncontested inquest, the defendant in this case is insisting on a trial, possibly with a jury. I suggested to the parties that they should consider the likely damaging effects of a contested trial on their two year old son, who will doubtless suffer from the increased tension between them. In addition, the trial will be expensive, and will almost certainly make it more difficult for the parties to cooperate amicably in the future to raise their son.

3. The only other demands are that the Wife admit that the parties were married on October 28, 2000, and that the parties are still married. These are obviously not actually in dispute, since the Wife alleged both in her complaint.

4. The Wife also moves for attorneys' fees but cites no basis for the application, so it is denied.

5. Compare, for example, the definition in MSN.encarta ("3-person sexual relationship: a sexual relationship involving three people"), with that in the Compact Oxford English Dictionary ("an arrangement in which a married couple and the lover of one of them live together").

6. Thus the definition of adultery under the criminal law is far narrower than under the Domestic Relations Law §170(4).

7. If the allegations concerning the "ménage-a-trois" were not irrelevant, then they would also be stricken for this reason.