Valentino v. Valentino

In an action for a divorce in which the defendant wife counterclaimed for a separation on the grounds of abandonment and adultery, the defendant appeals from stated portions of an order of the Supreme Court, Kings County, entered October 17, 1978, which, inter alia, denied her motion to strike the action from the Trial Calendar and to dismiss the complaint. Order modified, on the law and as a matter of discretion, by deleting the first, second and fourth decretal paragraphs thereof and by substituting therefor provisions (1) striking the action from the Trial Calendar, (2) dismissing the complaint, with leave to plaintiff to serve an amended complaint complying with CPLR 3016 (subd [c]) and (3) granting defendant’s application to compel plaintiff to appear for a deposition as to his financial situation. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Plaintiff’s time to serve an amended complaint is extended until 20 days after service upon him of a copy of the order to be made hereon, together with notice of entry thereof. The examination of plaintiff shall proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by defendant, or at such other time and place as the parties may agree. The action is remitted to Special Term for fixation of support for the defendant wife and her child pendente lite in an amount that is fair and reasonable in the light of the financial circumstances of the parties. In the circumstances disclosed by this record it was an abuse of discretion not to strike the action from the Trial Calendar and not to award alimony and child support pendente lite. The complaint does not comply with CPLR 3016 (subd [c]) with respect to the specificity of its allegations. Gibbons, J. P., Rabin, Gulotta and Cohalan, JJ., concur.