Third Department Holds Divorce on
Irretrievable Breakdown Grounds Is Not Another Action Pending for the Same
Relief Where Other Action Is Based upon Cruel and Inhuman Treatment and
Abandonment.
In Rinzler v Rinzler, ---
N.Y.S.2d ----, 2012 WL 2849241 (N.Y.A.D. 3 Dept.), plaintiff commenced an action for divorce on the grounds of
cruel and inhuman treatment and abandonment in 2009. Defendant answered and
counterclaimed for spousal support arrears. In September 2010, after enactment
of Domestic Relations Law § 170(7), plaintiff unsuccessfully sought defendant's
consent to discontinue the action, presumably so that he could commence a new
action based on the recently added no-fault ground. In March 2011, plaintiff
commenced an action for divorce pursuant to Domestic Relations Law §170(7).
Supreme Court granted Defendants motion to dismiss the action on the basis that
there was "another action pending between the same parties for the same cause of
action" (CPLR 3211[a][4] ).The Appellate Division reversed. It did not agree
that the complaint in the second action alleged the same cause of action as the
complaint in the first action. It observed that in determining whether two
causes of action are the same, it considers "(1) [whether] both suits arise out
of the same actionable wrong or series of wrongs[ ] and (2) as a practical
matter, [whether] there [is] any good reason for two actions rather than one
being brought in seeking the remedy". (Siegel, Practice Commentaries, McKinney's
Cons Laws of NY, Book 7B, CPLR C3211:15, at 29). Plaintiff's first complaint
sought a divorce on the grounds of cruel and inhuman treatment and abandonment.
To obtain a divorce on the ground of cruel and inhuman treatment, plaintiff was
required to show that the conduct of the defendant so endangers the physical or
mental well being of the plaintiff as renders it unsafe or improper for the
plaintiff to cohabit with the defendant.( Domestic Relations Law § 170[1] ). The
other ground asserted by plaintiff in the first action required proof of the
abandonment of the plaintiff by the defendant for a period of one or more years
(Domestic Relations Law § 170[2] ). On the other hand, the complaint in the
second action sought a no-fault divorce. Such relief requires a sworn
declaration that the marriage was irretrievably broken for a period of at least
six months (Domestic Relations Law § 170[7] ). In its view these causes of
action were not the same. Turning to the second prong of the inquiry, as a
practical matter, there was a good reason to allow plaintiff to maintain this
action. As the Legislature noted, the intent of no-fault divorce was "to lessen
the disputes that often arise between the parties and to mitigate the potential
harm to them ... caused by the current process" Similarly, the Governor stated,
in signing the legislation, that its intent was to "reduce litigation costs and
ease the burden on the parties in what is inevitably a difficult and costly
process.". Thus, allowing plaintiff to proceed on the cause of action for a
no-fault divorce, which was not available to him at the time he commenced the
first action, would not "unreasonably burden ... defendant with a series of
suits emanating from a single wrong merely by basing each suit on a different
theory of recovery". It rejected the defendant's contention that having
previously commenced an action prior to the effective date of Domestic Relations
Law § 170(7), plaintiff may not avail himself of the benefit of the no-fault
provision by commencing a new action because it would contravene the
Legislature's intent regarding the statute's effective date. Unlike the
equitable distribution statute, which substantially expanded the economic rights
of a spouse in a divorce the change created by Domestic Relations Law 170(7)
simply provides another ground for obtaining a divorce . Thus, allowing
plaintiff to maintain the new action for a no-fault divorce would not circumvent
the Legislature's intent.
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