New York Family Law Blog
A New York Family Lawyer said that, plaintiff commenced this divorce action via summons with notice. Prior to serving the summons with notice, Plaintiff moves for an Order authorizing an alternative method of service, for custody, child support, maintenance and attorney’s fees. Although Defendant submits no opposition papers to Plaintiff’s motion, Defendant affirmatively moves to dismiss the action “pursuant to DRL §230 claiming there is no subject matter jurisdiction in this Court to consider this matter.” Plaintiff opposes Defendant’s motion to dismiss.
A New York Divorce Lawyer said that, plaintiff wife also moves for: (1) An Order granting her primary physical and legal custody of the parties’ two (2) children, directing that so long as the daughter resides with her farther, he shall provide the Plaintiff wife all of the child’s residence information, access to all educational, medical and related personnel and records, and further directing that her daughter travel to and stay at the mother’s residence during all school recesses in excess of three (3) days; (2) An Order directing the Defendant husband to pay child support to the mother in conformance with the Child Support Standards Act, including maintaining any and all health insurance as is currently available through him in his capacity in the United States Navy, and, to bear in proportion to the parties’ respective incomes, any and all unreimbursed and/or uncovered medical and related expenses; (3) An Order direction husband to pay spousal support in an amount sufficient to permit Plaintiff to meet her ongoing needs during the pendency of this action; (4) An Order directing the father to pay attorneys’ fees on behalf of wife so as to permit her to have proper and sufficient representation.
A Nassau County Family Lawyer said the issue in this case is whether plaintiff fails to state a cause of action.
A Staten Island Family Lawyer said the Court said that, considering first Defendant’s motion to dismiss, he wrongly asserts that this Court lacks subject matter jurisdiction in this action because of Plaintiff’s alleged non-residence in New York. DRL §230(1.) provides, in pertinent part, that “an action for divorce may be maintained only when the parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding.” Despite Defendant’s contention to the contrary, a Plaintiffs noncompliance with DRL §230’s residence requirement does not affect this Court’s subject matter jurisdiction. Rather, such residence requirement is merely an element of Plaintiff’s divorce action, an element which she must plead and prove.
Although Defendant failed to specify the CPLR §3211 ground for his motion to dismiss, because Defendant’s motion challenges an element of Plaintiff’s divorce action, as per the above, it seeks dismissal for Plaintiff’s alleged “failure to state a cause of action.” When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff the benefit of every possible favorable inference. Additionally, because of the above burden, a CPLR §3211(a)(7) motion is premature before Plaintiff files and serves her complaint.