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The Issue in this Case is Whether Plaintiff Stated a Cause of Action


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 New York City Family Lawyer said the issue in this case is whether plaintiff fails to state a cause of action.

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.

Here, because Plaintiff has not filed and served a complaint, Defendant’s motion to dismiss is premature. On this record it is uncontested that Plaintiff commenced this action with a summons with notice. Neither party alleges service of a complaint or attaches a copy of Plaintiff’s complaint to their papers. As such, “because a complaint has not been served, this court has no factual allegation to review so as to permit it to determine whether plaintiff has any cognizable causes of action motion to dismiss pursuant to CPLR § 3211 is pre-mature.”

In view of the fact that a portion of the remaining motion of the Plaintiff mother concerns the children, this Court, in an exercise of discretion, will appoint an Attorney for the Children. Counsels are to immediately to provide that Attorney with a complete copy of motion papers for both parties. Upon receipt of those motion papers, the Attorney for the Children will have thirty (30) days to file and serve any affidavit or documentation in respect to the position of his clients concerning the motions which apply to the children.

Accordingly, Defendant’s motion to dismiss is denied.

The rule is 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. If you wish to file a divorce seek for the representation of a Nassau Divorce Attorney or Nassau Family Attorney at Stephen Bilkis and Associates. Call us for free consultation.

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