Rossiter v. Rossiter

OPINION OF THE COURT

Louis B. Heller, J.

This motion to dismiss the complaint and for an allowance of counsel fees in contesting plaintiff husband’s action for divorce is granted.

A complaint whose sole allegation of wife’s fault is that "defendant told the plaintiff to get out of the marital domicile in December, 1976 and since that time there has been no sexual relations between them” is insufficient as a matter of law, as less than one year had elapsed from December, 1976 to the date of commencement of this action. (See Domestic Relations Law, § 170, subd [2]; Levy v Levy, 53 AD2d 833; De Angelis v De Angelis, 54 AD2d 1088; Cavallo v Cavallo, 79 Misc 2d 195; Dudzick v Dudzick, 84 Misc 2d 731.)

Plaintiff’s answering affidavit stating that "the complaint should have read * * * and since September, 1976 there has been no sexual relations between them” adds little to the sufficiency of the cause of action. Though the lack of sexual relations from September, 1976 may, under properly pleaded circumstances, surmount the statutory bar of "one or more years”, those circumstances are not here pleaded. It is not the lack of sexual relations, but the unjustified refusal to have sexual relations that constitutes a cause of action cognizable under the statute. Plaintiff’s statement that "defendant told plaintiff to get out of the marital domicile” may under one concept constitute a cause of action for abandonment, but does not ipso facto constitute a refusal to have sexual relations, be it in their marital home or elsewhere. Thus, plaintiff may not automatically tack on to the abandonment of the marital abode the prior refusal to have sexual relations in order to constitute the "period of one or more years”.

Plaintiff may, if he be so advised and the facts and circumstances so warrant, serve an amended complaint within 10 days after the service of this order with notice of entry thereof.

Defendant at this stage of the proceedings is awarded counsel fees in the sum of $200 for the defense of this action, without prejudice to any future application that defendant may be advised to make after service of an amended complaint.