In the decision below, Justice Sarah Krauss dismisses a divorce complaint because it lacks the requisite specificity under the CPLR.


C.L. v. J. L.

Justice Sarah L. Krauss

KINGS COUNTY
Supreme Court

Justice Krauss

Defendant ("Husband" hereinafter) moved by Order to Show Cause for an Order dismissing the complaint of Plaintiff ("Wife" hereinafter). A prior order of this Court denied a prior motion for dismissal, granting leave to replead. No Amended Verified Complaint was served within the time allotted by that order, and Husband brought the aforementioned Order to Show Cause. At oral argument of that Order to Show Cause, the Court extended the time to serve the Amended Verified Complaint and the motion was held in abeyance. After Wife served an Amended Verified Complaint, Husband brought, by Notice of Motion, a further motion to dismiss, based upon a lack of particularity in the allegations (C.P.L.R. Rule 3016 (c)) and for failure to state a cause of action.¹ Wife opposed. This decision resolves both motions. Husband concedes, and is correct, that on this motion the Court must view the allegations in the complaint as true.

This is a long term marriage. Husband's attorney correctly argues that in a marriage of 30 years - as is the instant marriage - that a high degree of proof is necessary as a matter of law to grant a divorce, and that the proof must be of serious misconduct, not mere incompatibility or that the marriage is "dead". Brady v. Brady, 64 N.Y.2d 339, 476 N.E.2d 290, 476 N.Y.S.2d 891 (1985), Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891 (1974); Cauthers v. Cauthers, 32 A.D.3d 880, 821 N.Y.S.2d 239 (2nd Dept., 2006), Archibald v. Archibald, 15 A.D.3d 431, 791 N.Y.S.2d 565 (2nd Dept., 2005), Silver v. Silver, 253 A.D.2d 756, 677 N.Y.S.2d 593 (2nd Dept., 1998). It is a perhaps an unfortunate truth that the Domestic Relations Law requires persons living in a dead marriage to remain married, but this Court is in no position to grant to the litigants what the New York State Legislature has not seen fit to give.

Although Wife argues that the standard under C.P.L.R. §3016 (c) was relaxed for divorce cases, that is not true. In Pfiel v. Pfiel, 100 A.D.2d 725, 473 N.Y.S.2d 630 (4th Dept., 1984), the Fourth Department held that §3016 (c) "should be flexibly construed so as not to preclude a meritorious action" - citing only Professor Siegel as their authority. The Second Department has not adopted such a relaxed standard. Harari v. Harari, 234 A.D.2d 421, 651 N.Y.S.2d 123 (2nd Dept., 1996). Further, the allegations in Pfiel were more serious than those in the case at bar.

Although C.P.L.R. Rule 3016(c) does allow for some ambiguity as to time and dates, the very cases cited by Wife stand for the opposite conclusion from that which she urges. The case of C.L. v. R.G., 185 Misc.2d 613, 714 N.Y.S.2d 418 (Sup. Ct., Monroe Cty., 2000) urged by Wife as precedent requiring denial of this motion, is neither precedent nor requires denial. This trial court decision granted Wife a divorce because she alleged a constant "daily" pattern of dangerous drinking behavior, which resulted in her seeking medical attention several times. Since the allegation was that the husband's behavior occurred "daily" the Court held that there was no need to specify the dates. Such is not the case at bar. To the extent that this Court would consider a holding by a trial court in Monroe County to be persuasive authority, C.L. v. R.G. mitigates in favor of dismissal.

The Amended Verified Complaint is not Wife's first opportunity to plead her cause of action; were it, it might be an appropriate use of the discretion of the Court to order amendment and give Wife time to replead, and then compel Husband to accept her Amended Verified Complaint. Not only does this Amended Verified Complaint represent Wife's second attempt at constructing a valid cause of action, but this Amended Verified Complaint is troubling in that it adds new allegations not previously pled, while omitting others that were pled in the original complaint.

The relevant allegations include that Husband embarked on a course of "financially humiliating, demeaning and denigrating the plaintiff . . . humiliating and vilifying the friends and relatives of the plaintiff, refusing social intercourse with the plaintiff, her friends and relatives and engaging in verbal tantrums without just cause or provocation." Under the high degree of proof required in a marriage of long duration, these allegations are insufficient to support a judgment of divorce based on cruelty in a 30 year marriage, and there is absolutely no particularity as to when or where these events occurred, or who may have witnessed them, or which of Wife's friends or relatives were involved, or how this conduct rendered it "unsafe" or "improper" (D.R.L. §170 (1)) for the parties to remain married.

Wife also alleges failure to support her and maintain the marital residence "[d]uring the years 1987 to date", that Husband purchased a home in Grenada and "gratified every luxury and indulgence . . . from at least 1999 to date", that "from 2001 to date" Husband threatened to withhold support from Wife, and that from June, 2004, up until the present, he did withhold funds from her. These allegations are too vague to give Husband notice so that he could defend against them, and there are no allegations, for example, that due to Husband's failure to support Wife and maintain the marital residence, the house was foreclosed, that Wife has become a ward of the state, or that there was some structural collapse of the residence and that Wife was injured, which might be sufficient, at least in part, to form a cause of action under D.R.L. §170 (1) in a long-term marriage.

Wife further alleges the withholding of funds from her from "June, 2004 up until the present." Wife urges that as a result of Husband keeping all of the rent collected from the tenants in the parties' income producing properties, Wife's "living conditions" are being "severely undermined". Unless those living conditions are such that the safety of Wife is endangered, the standard under D.R.L. §170 (1) cannot be met. Further, Wife alleges that Husband is exposing her to potential lawsuits by his negligent management of those properties. Wife does not allege that there are any lawsuits pending. Wife also alleges that her "future financial stability is in jeopardy." This is mere speculation, which also cannot form the basis for a judgment based on cruel and inhuman treatment.

The further allegations are equally insufficient. Outbursts of temper, the calling of names, the treating of Wife as "incompetent" has been held repeatedly in a long term marriage to be insufficient, as a matter of law, to grant judgment. There is no indication of when or where these events occurred or who may have witnessed them, and thus the allegations also do not meet the standard under C.P.L.R. 3016 (c). Additionally, as with the previously addressed allegations, they fall short of the bar set by precedent for a cause of action based on cruel and inhuman treatment. Cauthers, supra, Archibald, supra, Bradley v. Bradley, 298 A.D.2d 485, 748 N.Y.S.2d 504 (2nd Dept., 2002), Davey v. Davey, 293 A.D.2d 444, 739 N.Y.S.2d 629 (2nd Dept., 2002), Silver v. Silver, supra, Biegeleisen v. Biegeleisen, 253 A.D.2d 474, 676 N.Y.S.2d 684 (2nd Dept., 1998), Arunas v. Arunas, 227 A.D.2d 424, 644 N.Y.S.2d 520 (2nd Dept., 1996). The high standard of proof for cruel and inhuman treatment causes of action in long-term marriages has resulted in the denial of a divorce even where there is an incident of physical assault. Palin v. Palin, 213 A.D.2d 707, 624 N.Y.S.2d 630 (2nd Dept,. 1995).

Although the Second Department, in Kapchan v. Kapchan, 104 A.D.2d 358, 478 N.Y.S.2d 689 (2nd Dept., 1984), allowed a complaint to survive a C.P.L.R. §3016 (c) motion, they did so only because the nature of the incidents alleged were sufficiently particularized, even if the time frames were somewhat general. The instant Amended Verified Complaint lacks the specificity of the nature of the acts complained of which satisfied the Appellate Division in Kapchan, supra; the acts complained of there were specific, and the times they occurred were stated ("two occasions in 1978", "the Spring of 1976", "Spring 1979 and continuing until October 1980") with sufficient particularity to allow the defendant to prepare a defense.

The Amended Verified Complaint contains only two particularized incidents which are pled in such a way to survive scrutiny under C.P.L.R. 3016 (c). The first is that on August 7, 2004, there was a dispute between the parties and Husband pushed Wife against a wall, threatened her, and chased her up the stairs. The second is that on August 18, 2004, Husband "had a verbal dispute with their son, S-, he then threatened to hit him and attack their other son, G." There is no allegation that Wife was present during the latter incident.

As to the allegation of assault, in a long-term marriage an isolated incident of assault without injury does not give rise to a cause of action for cruel and inhuman treatment. Palin, supra, Wachtel v. Wachtel, 114 A.D.2d 952, 495 N.Y.S.2d 216 (2nd Dept., 1985). The cases cited by Wife's attorney from Idaho, Wisconsin, and Iowa, are not authority in New York, where there is a well-developed body of law on this topic.²

Wife's citations of Hejna v. Reilly, 237 A.D.2d 809, 655 N.Y.S.2d 125 (3rd Dept., 1997) and Matthews v. Matthews, 238 A.D.2d 926, 661 N.Y.S.2d 115 (4th Dept., 1997) are equally unavailing, and not solely because they are decisions from other Judicial Departments. The holding in Hejna, supra, is unpersuasive, as it does not address whether the marriage was of long duration or short, which makes a great deal of difference: in the latter, there is a high degree of proof required.³ In Matthews, supra, the Fourth Department denied a divorce in a 14 year marriage where there was one incident of assault, coupled with strained relations and incompatibility.

Although Wife's counsel characterizes the conduct of Husband as similar to that of the husband in Siczewicz v. Siczewicz, 92 A.D.2d 915, 460 N.Y.S.2d 130 (2nd Dept., 1983), there is little comparison. The husband in Siczewicz not only refused to eat with the wife and denigrated her in front of their children (which behavior is similar in character to that alleged in the instant matter), he also refused to provide the family with heat during the winter, and despite his wife suffering from cancer, he punched her on one occasion, causing a black eye, kicked her so hard she fell out of bed, and slammed a drawer on her hand, hard enough to cause bleeding. There are no allegations in the case at bar which even vaguely approach this level of violence.

Regarding the incident with the parties' son, threats made against two fully grown persons, even if they are the children of the parties, cannot support a cause of action for cruel and inhuman treatment, especially where, as in this case, Wife was not even present during the alleged misconduct. The cases cited by Wife are inapplicable. Bihin v. Bihin, 17 Abb.Pr. 19, a trial court decision from 1863, involved beating a young child in his mother's presence. Taylor v. Taylor, 74 Hun. 639, 26 N.Y.S. 246 (3rd Dept., 1893), denied a divorce to the Plaintiff wife; the only discussion regarding children involved a question of admissibility of the parties's daughter's testimony. Wife's counsel could not find a single case supporting her position from the Second Department in the last 100 years.

The allegations of the Amended Verified Complaint, but for those two discussed above, fail to meet the particularity requirements of C.P.L.R. §3016 (c). All of the allegations, considered as a whole, fail to state a cause of action under D.R.L. §170 (1). Accordingly, that branch of Husband's motion which seeks dismissal is GRANTED and the Amended Verified Complaint is DISMISSED.

That branch of Husband's motion which seeks leave to move in this Court for an award of counsel fees in the event that the Court dismisses the action is also GRANTED, as unopposed.

The foregoing constitutes the Decision and Order of the Court.

1. Counsel's failure to cite the particular statute, C.P.L.R. Rule 3211 (a) ( 7), was not objected to by Wife's counsel and the Court's reading of this motion as one brought pursuant to that Rule is consistent with both the context of Husband's submissions and the letter and spirit of C.P.L.R. §2001.

2. In what appears to be an attempt to persuade the Court of her right to maintain this action, Wife cites Bonker v. Bonker, 102 Misc.2d 425, 423 N.Y.S.2d 430. In this misguided attempt to persuade this Court to reach a decision in her favor, Wife cites this decision as a holding of the "First Department", when it clearly is a trial decision from Delaware County, from 1979. Beyond the deceptive citation of the case, its holding appears to be an erroneous application of controlling law.

3. If in fact the Third Department has a lower standard of proof for long-term marriages, which is by no means clear from the cited decision, that Department is in conflict with the Second Department.
 

Justice Sarah L. Krauss

KINGS COUNTY
Supreme Court

Justice Krauss
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Defendant ("Husband" hereinafter) moved by Order to Show Cause for an Order dismissing the complaint of Plaintiff ("Wife" hereinafter). A prior order of this Court denied a prior motion for dismissal, granting leave to replead. No Amended Verified Complaint was served within the time allotted by that order, and Husband brought the aforementioned Order to Show Cause. At oral argument of that Order to Show Cause, the Court extended the time to serve the Amended Verified Complaint and the motion was held in abeyance. After Wife served an Amended Verified Complaint, Husband brought, by Notice of Motion, a further motion to dismiss, based upon a lack of particularity in the allegations (C.P.L.R. Rule 3016 (c)) and for failure to state a cause of action.¹ Wife opposed. This decision resolves both motions. Husband concedes, and is correct, that on this motion the Court must view the allegations in the complaint as true.

This is a long term marriage. Husband's attorney correctly argues that in a marriage of 30 years - as is the instant marriage - that a high degree of proof is necessary as a matter of law to grant a divorce, and that the proof must be of serious misconduct, not mere incompatibility or that the marriage is "dead". Brady v. Brady, 64 N.Y.2d 339, 476 N.E.2d 290, 476 N.Y.S.2d 891 (1985), Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891 (1974); Cauthers v. Cauthers, 32 A.D.3d 880, 821 N.Y.S.2d 239 (2nd Dept., 2006), Archibald v. Archibald, 15 A.D.3d 431, 791 N.Y.S.2d 565 (2nd Dept., 2005), Silver v. Silver, 253 A.D.2d 756, 677 N.Y.S.2d 593 (2nd Dept., 1998). It is a perhaps an unfortunate truth that the Domestic Relations Law requires persons living in a dead marriage to remain married, but this Court is in no position to grant to the litigants what the New York State Legislature has not seen fit to give.

Although Wife argues that the standard under C.P.L.R. §3016 (c) was relaxed for divorce cases, that is not true. In Pfiel v. Pfiel, 100 A.D.2d 725, 473 N.Y.S.2d 630 (4th Dept., 1984), the Fourth Department held that §3016 (c) "should be flexibly construed so as not to preclude a meritorious action" - citing only Professor Siegel as their authority. The Second Department has not adopted such a relaxed standard. Harari v. Harari, 234 A.D.2d 421, 651 N.Y.S.2d 123 (2nd Dept., 1996). Further, the allegations in Pfiel were more serious than those in the case at bar.

Although C.P.L.R. Rule 3016(c) does allow for some ambiguity as to time and dates, the very cases cited by Wife stand for the opposite conclusion from that which she urges. The case of C.L. v. R.G., 185 Misc.2d 613, 714 N.Y.S.2d 418 (Sup. Ct., Monroe Cty., 2000) urged by Wife as precedent requiring denial of this motion, is neither precedent nor requires denial. This trial court decision granted Wife a divorce because she alleged a constant "daily" pattern of dangerous drinking behavior, which resulted in her seeking medical attention several times. Since the allegation was that the husband's behavior occurred "daily" the Court held that there was no need to specify the dates. Such is not the case at bar. To the extent that this Court would consider a holding by a trial court in Monroe County to be persuasive authority, C.L. v. R.G. mitigates in favor of dismissal.

The Amended Verified Complaint is not Wife's first opportunity to plead her cause of action; were it, it might be an appropriate use of the discretion of the Court to order amendment and give Wife time to replead, and then compel Husband to accept her Amended Verified Complaint. Not only does this Amended Verified Complaint represent Wife's second attempt at constructing a valid cause of action, but this Amended Verified Complaint is troubling in that it adds new allegations not previously pled, while omitting others that were pled in the original complaint.

The relevant allegations include that Husband embarked on a course of "financially humiliating, demeaning and denigrating the plaintiff . . . humiliating and vilifying the friends and relatives of the plaintiff, refusing social intercourse with the plaintiff, her friends and relatives and engaging in verbal tantrums without just cause or provocation." Under the high degree of proof required in a marriage of long duration, these allegations are insufficient to support a judgment of divorce based on cruelty in a 30 year marriage, and there is absolutely no particularity as to when or where these events occurred, or who may have witnessed them, or which of Wife's friends or relatives were involved, or how this conduct rendered it "unsafe" or "improper" (D.R.L. §170 (1)) for the parties to remain married.

Wife also alleges failure to support her and maintain the marital residence "[d]uring the years 1987 to date", that Husband purchased a home in Grenada and "gratified every luxury and indulgence . . . from at least 1999 to date", that "from 2001 to date" Husband threatened to withhold support from Wife, and that from June, 2004, up until the present, he did withhold funds from her. These allegations are too vague to give Husband notice so that he could defend against them, and there are no allegations, for example, that due to Husband's failure to support Wife and maintain the marital residence, the house was foreclosed, that Wife has become a ward of the state, or that there was some structural collapse of the residence and that Wife was injured, which might be sufficient, at least in part, to form a cause of action under D.R.L. §170 (1) in a long-term marriage.

Wife further alleges the withholding of funds from her from "June, 2004 up until the present." Wife urges that as a result of Husband keeping all of the rent collected from the tenants in the parties' income producing properties, Wife's "living conditions" are being "severely undermined". Unless those living conditions are such that the safety of Wife is endangered, the standard under D.R.L. §170 (1) cannot be met. Further, Wife alleges that Husband is exposing her to potential lawsuits by his negligent management of those properties. Wife does not allege that there are any lawsuits pending. Wife also alleges that her "future financial stability is in jeopardy." This is mere speculation, which also cannot form the basis for a judgment based on cruel and inhuman treatment.

The further allegations are equally insufficient. Outbursts of temper, the calling of names, the treating of Wife as "incompetent" has been held repeatedly in a long term marriage to be insufficient, as a matter of law, to grant judgment. There is no indication of when or where these events occurred or who may have witnessed them, and thus the allegations also do not meet the standard under C.P.L.R. 3016 (c). Additionally, as with the previously addressed allegations, they fall short of the bar set by precedent for a cause of action based on cruel and inhuman treatment. Cauthers, supra, Archibald, supra, Bradley v. Bradley, 298 A.D.2d 485, 748 N.Y.S.2d 504 (2nd Dept., 2002), Davey v. Davey, 293 A.D.2d 444, 739 N.Y.S.2d 629 (2nd Dept., 2002), Silver v. Silver, supra, Biegeleisen v. Biegeleisen, 253 A.D.2d 474, 676 N.Y.S.2d 684 (2nd Dept., 1998), Arunas v. Arunas, 227 A.D.2d 424, 644 N.Y.S.2d 520 (2nd Dept., 1996). The high standard of proof for cruel and inhuman treatment causes of action in long-term marriages has resulted in the denial of a divorce even where there is an incident of physical assault. Palin v. Palin, 213 A.D.2d 707, 624 N.Y.S.2d 630 (2nd Dept,. 1995).

Although the Second Department, in Kapchan v. Kapchan, 104 A.D.2d 358, 478 N.Y.S.2d 689 (2nd Dept., 1984), allowed a complaint to survive a C.P.L.R. §3016 (c) motion, they did so only because the nature of the incidents alleged were sufficiently particularized, even if the time frames were somewhat general. The instant Amended Verified Complaint lacks the specificity of the nature of the acts complained of which satisfied the Appellate Division in Kapchan, supra; the acts complained of there were specific, and the times they occurred were stated ("two occasions in 1978", "the Spring of 1976", "Spring 1979 and continuing until October 1980") with sufficient particularity to allow the defendant to prepare a defense.

The Amended Verified Complaint contains only two particularized incidents which are pled in such a way to survive scrutiny under C.P.L.R. 3016 (c). The first is that on August 7, 2004, there was a dispute between the parties and Husband pushed Wife against a wall, threatened her, and chased her up the stairs. The second is that on August 18, 2004, Husband "had a verbal dispute with their son, S-, he then threatened to hit him and attack their other son, G." There is no allegation that Wife was present during the latter incident.

As to the allegation of assault, in a long-term marriage an isolated incident of assault without injury does not give rise to a cause of action for cruel and inhuman treatment. Palin, supra, Wachtel v. Wachtel, 114 A.D.2d 952, 495 N.Y.S.2d 216 (2nd Dept., 1985). The cases cited by Wife's attorney from Idaho, Wisconsin, and Iowa, are not authority in New York, where there is a well-developed body of law on this topic.²

Wife's citations of Hejna v. Reilly, 237 A.D.2d 809, 655 N.Y.S.2d 125 (3rd Dept., 1997) and Matthews v. Matthews, 238 A.D.2d 926, 661 N.Y.S.2d 115 (4th Dept., 1997) are equally unavailing, and not solely because they are decisions from other Judicial Departments. The holding in Hejna, supra, is unpersuasive, as it does not address whether the marriage was of long duration or short, which makes a great deal of difference: in the latter, there is a high degree of proof required.³ In Matthews, supra, the Fourth Department denied a divorce in a 14 year marriage where there was one incident of assault, coupled with strained relations and incompatibility.

Although Wife's counsel characterizes the conduct of Husband as similar to that of the husband in Siczewicz v. Siczewicz, 92 A.D.2d 915, 460 N.Y.S.2d 130 (2nd Dept., 1983), there is little comparison. The husband in Siczewicz not only refused to eat with the wife and denigrated her in front of their children (which behavior is similar in character to that alleged in the instant matter), he also refused to provide the family with heat during the winter, and despite his wife suffering from cancer, he punched her on one occasion, causing a black eye, kicked her so hard she fell out of bed, and slammed a drawer on her hand, hard enough to cause bleeding. There are no allegations in the case at bar which even vaguely approach this level of violence.

Regarding the incident with the parties' son, threats made against two fully grown persons, even if they are the children of the parties, cannot support a cause of action for cruel and inhuman treatment, especially where, as in this case, Wife was not even present during the alleged misconduct. The cases cited by Wife are inapplicable. Bihin v. Bihin, 17 Abb.Pr. 19, a trial court decision from 1863, involved beating a young child in his mother's presence. Taylor v. Taylor, 74 Hun. 639, 26 N.Y.S. 246 (3rd Dept., 1893), denied a divorce to the Plaintiff wife; the only discussion regarding children involved a question of admissibility of the parties's daughter's testimony. Wife's counsel could not find a single case supporting her position from the Second Department in the last 100 years.

The allegations of the Amended Verified Complaint, but for those two discussed above, fail to meet the particularity requirements of C.P.L.R. §3016 (c). All of the allegations, considered as a whole, fail to state a cause of action under D.R.L. §170 (1). Accordingly, that branch of Husband's motion which seeks dismissal is GRANTED and the Amended Verified Complaint is DISMISSED.

That branch of Husband's motion which seeks leave to move in this Court for an award of counsel fees in the event that the Court dismisses the action is also GRANTED, as unopposed.

The foregoing constitutes the Decision and Order of the Court.

1. Counsel's failure to cite the particular statute, C.P.L.R. Rule 3211 (a) ( 7), was not objected to by Wife's counsel and the Court's reading of this motion as one brought pursuant to that Rule is consistent with both the context of Husband's submissions and the letter and spirit of C.P.L.R. §2001.

2. In what appears to be an attempt to persuade the Court of her right to maintain this action, Wife cites Bonker v. Bonker, 102 Misc.2d 425, 423 N.Y.S.2d 430. In this misguided attempt to persuade this Court to reach a decision in her favor, Wife cites this decision as a holding of the "First Department", when it clearly is a trial decision from Delaware County, from 1979. Beyond the deceptive citation of the case, its holding appears to be an erroneous application of controlling law.

3. If in fact the Third Department has a lower standard of proof for long-term marriages, which is by no means clear from the cited decision, that Department is in conflict with the Second Department.