[*1] L.K. v F.K. 2010 NY Slip Op 50920(U) [27 Misc 3d 1226(A)] Decided on February 22, 2010 Supreme Court, New York County Kaplan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 22, 2010
Supreme Court, New York County

L.K., Plaintiff,

against

F.K., Defendant.



xx/10



For the Plaintiff

Myrna Felder, Esq.

437 Madison Avenue

New York, NY 10022

For the Defendant:

Marsh, Valentine and Donohoe

10 East 40th Street, 42nd Floor

New York, NY 10016

Deborah A. Kaplan, J.



In this action, the plaintiff-husband (hereinafter "husband") seeks a divorce on the grounds of the defendant-wife's (hereinafter "wife") cruel and inhuman treatment. Arguing that there is no affirmative defense to an action for divorce on the grounds of cruel and inhuman treatment, the husband moves for a ruling in limine that no testimony concerning any alleged cruel and inhuman treatment of the wife on his part be admissible at the grounds trial.

Further, the husband seeks a an Order quashing certain subpoenae served or to be served by the wife in support of such an affirmative defense, and, pursuant to 22 NYCRR § 130-1.1(a), directing that he be reimbursed for expenses incurred and reasonable attorney's fees resulting from the wife's frivolous conduct in proceeding with her affirmative defense and serving the above-referenced subpoenae. The wife opposes the motion.

The husband argues that the law is well-settled in New York that there are no affirmative defenses to an action for a divorce based upon cruel and inhuman treatment. Accordingly, it is his position that the wife cannot raise the affirmative defense that the husband is guilty of cruel [*2]and inhuman treatment against her.

Even if such a defense were available to the wife, the husband contends that she would have waived it by neither pleading it nor raising it in a motion.

The wife counters that the evidence which she seeks to introduce at a grounds trial, specifically that it was the husband who first left the marital residence and began a relationship with another woman, is not being offered as an affirmative defense, but in support of her contention that the husband has failed to state a cause of action. Such evidence is relevant, the wife argues, on a number of grounds including that her alleged conduct in socializing with an unrelated male or posting a profile on a dating website does not constitute cruelty given the husband's prior conduct. In addition, the wife avers that such evidence is admissible to establish that the husband's motivation for seeking a divorce is not the allegedly cruel and inhuman treatment on the wife's part, but, rather, his desire to pursue a relationship with another woman.

It is true, as the husband argues that "[t]here is no statutory defense to an action for divorce based upon defendant's cruel and inhuman treatment."Pajak v. Pajak, 85 AD2d 923 (4th Dept. 1981). Therefore, the evidence which the wife seeks to introduce is not admissible for purposes of establishing such a defense.

This, however, does not end the inquiry. While the Court noted in Mante v. Mante, 34 AD2d 134 (2nd Dept. 1970), that adultery remains the only misconduct which is a recriminatory defense to an action for divorce, it further stated that "[i]t is still relevant that the plaintiff in suing for a divorce on the ground of cruelty may have been guilty of provoking the defendant's behavior. If provocation by the plaintiff has incited the defendant's acts, the acts, though wrong may be excused and the action for divorce dismissed." Mante, supra at 140; see also, Melnick v. Melnick, 146 AD2d 538 (1st Dept. 1989) (Jury could rationally have found that husband had not established that he was entitled to a divorce on cruel and inhuman grounds given his own misconduct against the wife.) Tripi v. Tripi, 94 AD2d 944 (4th Dept. 1983) (Although trial court found that the wife's refusal to let husband back into marital residence was sufficient to constitute cruel and inhuman treatment of the husband, Appellate Division, finding that the wife's actions were justified in view of the husband's previous misconduct, reversed judgment of divorce in husband's favor); Passantino v. Passantino, 87 AD2d 973 (4th Dept. 1982) (Error to grant husband divorce on grounds of cruel and inhuman treatment since the wife's refusal to have sexual relations with the husband was based on his own misconduct.); cf., Lipset v. Lipset, 150 AD2d 648 (2nd Dept. 1989) (Plaintiff failed to establish cause of action for divorce based upon cruel and inhuman treatment since he stopped living with wife prior to her alleged relationship with another man, and, in addition, did not adequately allege that wife's conduct caused him physical or mental harm rendering cohabitation unsafe or improper.)

Additionally, a defendant may show that misconduct by a plaintiff, such as lure and attraction of paramour, is the reason for a plaintiff seeking a divorce rather than the alleged cruel and inhuman treatment. Dodd v. Colbert, 64 AD3d 982 (3rd Dept. 2009); Trombley v. Trombley, 64 Ad2d 993 (3rd Dept. 1978); Bloom v. Bloom, 52 AD2d 1030 (4th Dept. 1976). While such evidence does not constitute an affirmative defense, it is, nonetheless, "material and necessary to the defense of the action." Bloom, supra.

Based on the foregoing, evidence that the husband left the marital residence and was involved with another woman prior to the wife's alleged cruel and inhuman conduct is material [*3]and relevant, not to establish an affirmative defense to the husband's allegations, but in support of the wife's contention that the husband does not have a cause of action for divorce based upon cruel and inhuman treatment either because, given the husband's misconduct, the wife's conduct was excused, or because the husband's motivation in seeking a divorce is not, in fact, the wife's cruel and inhuman treatment as set forth in his complaint, but his relationship with another woman. Accordingly, for these purposes, this evidence may be introduced at the grounds trial. To hold otherwise, would be error. Shagoury v. Shagoury, 39 AD2d 527 (2nd Dept. 2007) (Although wife presented evidence which, if believed, would support finding of cruel and inhuman treatment, new trial is required because trial court precluded husband from eliciting relevant testimony in his defense.)

Regarding the subpoenae, the wife states that if the husband wishes to stipulate to the facts regarding his leaving the marital residence and embarking on a relationship with another woman, the testimony of the subpoenaed witnesses may not be necessary. The husband in his reply provides a sworn statement wherein he acknowledges that he "had a relationship with another woman, S.D. after I was no longer living in the marital residence. I want to emphasize that I did not engage in a relationship with Ms. D., until after I was no longer living with defendant. In short, that relationship occurred after October 2008 and had nothing whatever to do with my departure." Based on this statement, it does not appear that the testimony of the witnesses subpoenaed by the wife will be required. Accordingly, the subpoenae are quashed.

Inasmuch as the wife has prevailed at least in part on this motion, there is no basis to order her to pay opposing counsel's fees or expenses pursuant to 22 NYCRR § 130-1.1(a) and, accordingly, the Court declines to order such payments.

Therefore, upon consideration of the facts presented and the applicable law, it is hereby;

ORDERED, that the husband's motion for a ruling in limine is granted in part as set forth in the Decision/Order, and it is further

ORDERED, that the husband's application that the subpoenae referenced in the motion be quashed, is granted, and it is further

ORDERED, that the husband's application for reimbursement of expenses and attorney's fees is denied, and it is further

ORDERED, that counsel for the husband shall serve a copy of the within Decision upon counsel for the husband, with notice of entry, within ten (10) days of entry.

This constitutes the Decision and Order of the Court.

E N T E R

____________________________

Hon. Deborah A. Kaplan

J.S.C.