I. S. v. R. S. , 499 N.Y.S.2d 106 ( 1986 )

—In a matrimonial action, the defendant husband appeals from so much of an order of the Supreme Court, Westchester County (Palella, J.), entered October 16, 1984, as denied that branch of his motion which was to strike scandalous and prejudicial allegations in the complaint and failed to determine that branch of his motion which was to dismiss the third cause of action as time barred by the Statute of Limitations.

Appeal from so much of the order as denied that branch of the motion which was to strike scandalous and prejudicial matter dismissed as no appeal lies therefrom as a matter of right.

Order otherwise modified by adding a provision granting that branch of the defendant’s motion which sought to dismiss the third cause of action as time barred to the extent that paragraph 12A of the complaint is dismissed. As so modified, order affirmed, insofar as reviewed.

The appellant is awarded one bill of costs.

In this matrimonial action, commenced on or about August 2, 1984, the defendant husband moved, inter alia, pursuant to CPLR 3211 (a) (5), to dismiss the third cause of action and paragraph 12A thereof set forth in the verified complaint upon the ground that certain allegations contained therein are barred by the Statute of Limitations. The plaintiffs complaint sets forth as one instance of cruel and inhuman treatment that, in 1974, the defendant disclosed to the plaintiff that he had contracted a venereal disease, to wit, herpes, and continued to be afflicted therewith.

Domestic Relations Law § 210 provides that no action for divorce may be maintained on a ground which arose more than five years before the date of the commencement of that action. Here, it is quite apparent that this alleged act of cruelty occurred considerably more than five years prior to the commencement of the action for divorce. Therefore, that portion of the plaintiffs complaint should have been dismissed as time barred under the Statute of Limitations set forth in Domestic Relations Law § 210.

Lastly, to the extent that Special Term denied that branch of the defendant’s motion which was to strike scandalous and prejudicial matter (CPLR 3024 [b]), leave to appeal therefrom was required pursuant to CPLR 5701 (b) (3). Inasmuch as such permission was never sought, the appeal from that portion of the order is dismissed (see, Tudor v Riposanu, 93 AD2d 718). Lazer, J. P., Gibbons, Eiber and Kunzeman, JJ., concur.