Dean v Dean

[*1] Dean v Dean 2016 NY Slip Op 50881(U) Decided on May 4, 2016 Supreme Court, Monroe County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 4, 2016
Supreme Court, Monroe County

Joyce B. Dean, Plaintiff,

against

David F. Dean, MD., Defendant.



14/3166



Stuart L. Levison, Esq.

Attorney for Plaintiff

Rochester, New York

Joan de R. O'Bryne, Esq.

Attorney for Defendant

Rochester, New York
Richard A. Dollinger, J.

In a prior opinion this case, this court used a Texas dance step metaphor to discuss a procedural conundrum and speed this matter along. Now, the metaphor shifts to a card game and the court needs to decide, in the words of Kenny Rogers, "when to hold em and when to fold em." In this decision, the court "holds some" and "folds some," and while the cards may be reshuffled somewhat, this litigation goes on.

In the second installment of this matter, the parties war over whether the defendant meets the residency requirements of Section 230 of the Domestic Relations Law as a predicate to maintaining this divorce action.[FN1] The plaintiff, who is now living in Texas, alleges in her verified complaint that she and her husband resided in New York as husband and wife and the husband is currently a resident and has been a resident of New York for one continuous year preceding the commencement of the action. NY [*2]DRL § 230 (2).[FN2]

In resolving this question, the first predicate fact is not disputed: the husband and wife resided in New York as husband and wife. This couple lived in Texas for more than a decade after their marriage. In March, 2013, the couple moved to Rochester. New York. It is undisputed that when the couple came north, their marriage went south. They lived in Rochester for some period of time - no more than two months according to the wife and her counsel. The wife, in no less than three months, returned to Texas. The husband continued to reside in New York.

This action was filed on March 19, 2014. However, the defendant contends that he was not a resident for a year prior to the commencement and he further claims that only on March 30, 2013 did he establish residence in New York and hence, he was not, at the time of the commencement of the action, a resident of New York for one year "immediately proceeding" the commencement of the action as Section 230 (2) of the Domestic Relations Law requires.

Curiously, the procedural posture of the case, even after the first opinion, remains somewhat tangled. The husband moves, pursuant to CPLR 3211 to dismiss the verified complaint because he contends that this court lacks subject matter jurisdiction over the verified complaint as a result of the fact that the husband has not resided in New York for a continuous year prior to the commencement of the action. This court must peer through the defendant's motion to get to the nub of the current controversy before the court. While the defendant alleges that the basis for the motion is the absence of the court's subject matter jurisdiction, the actual basis, as revealed in a close reading of the motion papers, is the lack of a predicate factual basis for residency as required by Section 230 of the Domestic Relations Law. As others might suggest, the defendant has the right church - a request for dismissal - but the wrong pew - subject matter jurisdiction. If the issue were subject matter jurisdiction, the defendant and his counsel would be on the outside looking in: the lack of compliance with residency requirements is not a subject matter issue, as the Court of Appeals and other court have held that the non-compliance with the residency requirements does not strip the court of subject matter jurisdiction so as to void any resulting judgment. Lack v. Lacks, 41 NY2d 71 (1976).

But, this court, in reading the papers, can direct this application to the right pew: any reasonable reading of the defendant's motion papers indicates this application is a challenge to the plaintiff's compliance with the residency requirements of the Domestic Relations Law. The defendant's motion, stylized as a motion to dismiss - presumably because no answer has been field and issue is not joined - has actually been treated by both parties as a motion for summary judgment, a conversion of the papers from one form of motion to another as CPLR 3211 (c) permits. The New York courts, in the spirit of judicial economy and to serve the purposes of the CPLR to accelerate dispute resolution when facts are undisputed have long sanctioned converting motions to [*3]dismiss into dispositive summary judgment motions. Nassau BOCES Cent. Council of Teachers v. Board of Cooperative E..., 63 NY2d 100. 102 (1984) (it is also true that a motion for summary judgment is usually made only "after issue has been joined" ( CPLR 3212, subd. [a]) and that motion to dismiss may be treated as a motion for summary judgment only when the parties have had the opportunity to "submit any evidence that could properly be considered on a motion for summary judgment"). See also Kinberg v. Schwartzapfel, Novick, Truhowsky, Marcus, PC, 136 AD3d 431 (1st Dept. 2016) (converting a motion to dismiss into a motion for summary judgment).

As a general proposition, notice to the parties is required before this court can convert the motion to dismiss into a motion for summary judgment. But, the Court of Appeals has suggested that notice can be dispensed with if it is clear from the papers that no prejudice has resulted from omission of notice. Rich v Lefkovits, 56 NY2d 276, 283 (1982). The court may also consider a motion to dismiss as a motion for summary judgment if the parties clearly charted a summary judgment course by submitting extensive documentary evidence and factual affidavits laying bare their proof., Meredith v Siben & Siben, LLP, 130 AD3d 791 (2nd Dept. 20-15); Dawley v. Town of Tyre, 43 Misc 3d 1222 (A) (Sup. Ct. Seneca Cty. 2014) rev'd on other grounds sub nom., Matter of Dawley v. Whitetail 414, LLC, 130 AD3d 1570 (4th Dept. 2015) (treating a motion to dismiss as a motion for summary judgment). This court takes the same posture as a fellow member of the Court of Claims, serving as an acting Supreme Court Justice:

The parties had adequate notice that the matter was being treated as a motion for summary judgment in this case. In view of 3211 (c)'s authorization to treat a 3211 motion as one for summary judgment, to say nothing of the fact that the parties have made full use of evidence outside the amended complaint in support of their respective positions on the motion, defendants' failure to label their motion as a motion to dismiss and to seek to have the motion treated as a motion for summary judgment is not fatal (see David D. Siegel, Practice Commentary, McKinney's Cons Laws of NY Book 7B, CPLR C3212:12).

Arkin Kaplan Rice LLP v Kaplan, 2013 NY Slip Op 31210 (U) (Suo. Ct. New York Cty. 2013) (Sherwood, J.).

Therefore, consistent with these wise directives, this court considers the motion to dismiss the verified complaint as a motion for summary judgment to dismiss the claim for a divorce because the wife cannot establish that the defendant was a resident of New York for one year "immediately preceding" the commencement of this action. This court cannot ignore or bend the residency requirement - even 364 days of residence will not meet the statutory test. The residency requirements serve an important public policy purpose:

. . . the durational residency requirements [in Section 230] were added, "to preclude the use of our courts in matrimonial proceedings by spouses with no real ties with New York, who would flock here for the sole purpose of obtaining matrimonial relief unavailable in [s]tates that had substantial interests in the marital relationship . . .

[*4]Black v Black, 108 AD3d 842 (3rd Dept. 2013).

In that regard, the residency requirements of Section 230 are New York's equivalent of standing to permit a party to pursue a divorce in this state. As the Court of Appeals noted, "the existence of at least one of the connections with the State set forth in section 230 of the same law is equally essential" to obtain a divorce in New York. Lacks v. Lacks, 41 NY2d 71, 72 (1976). Against this backdrop, the residency requirements in Section 230 are more accurately characterized as grounds for "standing to seek relief." Spatz v. Bajramoski, 214 AD2d 436 (1st Dept. 1995). Residency under Section 230 is a substantive element of the cause of action to be proved by plaintiff at trial. Rubin v. Rubin, 73 AD2d 148, 151 (1st Dept. 1980). In Bourjolly v Mouscardy, 85 AD3d 627 (1st Dept. 2011), a party moved to dismiss for failure to meet the residency requirement and the court noted:

Although the residency requirement of the statute is not jurisdictional in nature, and is a substantive element of the cause of action to be proven at trial the issue may be resolved at a pretrial hearing "in the interest of economy of effort and sound judicial management"

Id. (citations omitted).

In a further attempt to undercut the defendant's claim, the plaintiff wife argues that the husband's failure to include an affirmative defense in answers submitted to the various complaints constitutes a waiver of his right to assert that the residency requirements have not been met. At first blush, the husband's claim has merit: if the answer fails to raise an affirmative defense or it is not raised by a motion to dismiss in advance of the answer, the affirmative defense is waived. Tuscan/Lehigh Dairies, Inc. v Beyer Farms, Inc., 136 AD3d 799 (2d Dept 2016)(waived the defense of election of remedies by failing to raise it as an affirmative defense in its amended answer); CPLR 3018[b]; Matter of Plainview-Old Bethpage Congress of Teachers v New York State Health Plan, 133 AD3d 1140 (3d Dept 2015)(waived their argument that petitioners lack standing to maintain this combined action/proceeding, inasmuch as they failed to raise this affirmative defense in either a pre-answer motion to dismiss or their answer). However, the husband, under what the Court's now recognizes as a motion for summary judgment, is not seeking judgment based on the affirmative defense of a failure to state a claim. The issue is not whether the amended verified complaint states a claim: the verified complaint in paragraph 2 properly pleads the facts to establish the residency requirement under DRL Section 203(2), as it alleges that the husband resided in New York for a period of at least one year. In that respect, on its face, the amended verified complaint states a claim as a matter of law and, if that was the only issue before this Court, the husband's motion would be denied.

However, the issue now before this Court, raised somewhat circuitously by the inartful pleading by the husband, is whether that residency allegation is true. The husband, in his answer, specifically denied that allegation. By moving to challenge the truthfulness of that allegation, the husband asks this Court to search the record in this case and decide whether the allegation in the amended complaint regarding the [*5]husband's continued residence for a year in New York is true. This Court has the power to search the record and determine whether the allegation is true — as the wife alleges — or false — as the husband alleges. Apostolatos v Kanelakis, 2016 NY Slip Op 30599(U)(Sup. Ct. Queens Cty 2016)(court is empowered to search the record and award summary judgment even to a nonmoving party). Gl Acupuncture, P.C. v Ameriprise Auto & Home, 51 Misc 3d 128(A)(App. Term, 2d Dept 2016)(court may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of motions before the court). In this case, the husband does not deny that he began residing in New York in March, 2013 — he simply alleges that he did not commence residing in New York until after March 19, 2013. If the wife cannot provide any proof to rebut that claim, the husband is entitled to summary judgment dismissing the claim for a divorce. Stankey v Tishman Constr. Corp. of NY, 131 AD3d 430 (1st Dept 2015) (summary judgment proper when justified by undisputed facts).

While this court can convert the pending matter into a motion for summary judgment to dismiss the verified complaint because the residency requirements of Section 230 are not present, this court must also carefully determine whether there are any disputed facts that would preclude summary judgment. Guedes v. Guedes, 45 AD3d 533, 534 (2nd Dept. 2007) (error to determine compliance with the residency based on a prior affidavit when sharp questions of fact regarding the residency issue were presented on the motion and cross motion). A review of the facts before the court demonstrates that both parties presented sworn statements of when this couple left Texas and arrived in New York. The defendant husband produced evidence that the husband did not arrive in New York until March 29 or March 30, 2013. The husband produces a series of credit card statements which document that he and his wife left Texas on March 19, 2013, traveled through Louisiana, South Carolina, West Virginia and Pennsylvania before arriving in New York on March 29, 2013. The wife, in her several affidavits aired before this court, simply describes that she moved to New York in March, 2013, but she does not specify a date in that month when she arrived. The wife's son, in an affidavit submitted in this proceeding, states that the husband and wife moved to Fairport, New York on March 25, 2013. Even this date - March 25, 2013 - is less than one year before the commencement of the action on March 19, 2014.[FN3] These facts are buttressed by an email, sent by the defendant husband in this case, to the plaintiff's son on March 6, 2013. In that email, the defendant tells the plaintiff's son that he and his wife intended to leave Texas on or about March 25 or 26 and arrived in New York on March 29. The credit card statement, similarly attested to by the husband, demonstrates that the husband followed the flight plan he projected in the email to his then son-in-law. In any event, this evidence demonstrates that the husband became a resident of New York no sooner than March 29, 2013.

In the face of these factual allegations, the wife can offer no specific evidence that the husband resided in New York State at any time prior to March 19, 2013. In the absence of such evidence, this court finds the plaintiff lacks standing to maintain an action for divorce in this state because while she resided her with her husband as husband and wife in New York for some time, the husband did not reside here for one year prior to the filing of this action on March 19, 2014. Summary judgment is granted on that portion of the compliant seeking a divorce under Section 170 of the Domestic Relations Law.

While that might seem to be the "fold em" part of this case, there is a "hold em" part, too. Before the husband reaches for the pot and seeks to depart this matter, there are still cards on the table.

The complaint does not simply request a divorce. It also seeks maintenance, the continuation of medical and dental coverage and the payment of medical expenses. This court, in an exercise of discretion, will convert this proceeding into a support proceeding under Article 4 of the Family Court Act. See NY Fam Ct. Act § 412; see Valji v. Valji, 130 AD3d 404 (1st Dept. 2015) (court can retain jurisdiction over support even if no residency exist to support the divorce action); Venizelos v. Venizelos, 216 AD2d 206 (1st Dept. 1995). NY C.P.L.R. 103 (c) provides that this court may correct technical pleading errors and convert any civil judicial proceeding not brought in the proper form into one which would be proper rather than dismissing it, making whatever order is necessary for its proper prosecution. The Family Court Act does not contain any residency requirements that bar the wife's application in this case and therefore, the proceeding can still go forward on those issues. Goldman v Goldman, 132 Misc 2d 870, affd 124 AD2d 1079 (1st Dept. 1986).

There is final hurdle to allowing this matter to go forward: the defendant, as an alternative ground for dismissal, argues that the plaintiff is incompetent and cannot bring an action for divorce or support in New York. However, this court declines to make any ruling on the plaintiff's competence: the plaintiff has, after the commencement of this action, signed both the amended verified complaint and an affidavit before the court. It is undisputed that the plaintiff has a guardian appointed in Texas and while the parties have squabbled over the scope of the guardian's powers, a Texas court has jurisdiction over that question. According to an undisputed affidavit from the court-appointed guardian, in October, 2014, when the defendant husband was present in a Texas courtroom and after this action was commenced, the Texas court approved a settlement that would have the guardian continue to assist the plaintiff, but there was no finding that the plaintiff was incapacitated then, or at the time of the filing of this complaint. The guardian's affidavit before this Court confirms those facts and is undisputed. As a consequence, this court declines to consider any issues relating to the plaintiff's competency.[FN4] The Texas courts have jurisdiction on that question and have attended to it. As evidence of the jurisdiction of the Texas courts, an affidavit from the plaintiff's Texas [*6]counsel indicates that the defendant husband appeared in the Texas courts with counsel at the time of the proposed competency hearing and was present when the issue was resolved. Based on these facts, it is apparent that even the defendant husband, by his presence in the Texas courts when the competency matter was scheduled, acknowledges that any competency issues raised in this case are only proper before the Texas courts. Even if this court had jurisdiction and some - albeit minuscule - temptation to hear this issue, reasons of judicial economy - the plaintiff lives in Texas, has difficulty traveling, her physicians, care givers and other fact witnesses reside there - and comity - the Texas court can apply its own rules to the competence questions which would have broader implications than just here in New York - dictate that if the husband seeks to play the competency card and challenge the Texas court's determination and its findings, he needs to head to the Lone Star State.

The husband has already answered the amended verified complaint for maintenance, continuation of dental and medical coverage and medical expenses. The parties shall file any disclosure request no later than 10 days after the filing and service of the order incorporating this Court's decision and the Court will further issue a scheduling order shortly thereafter.

This hand — "the procedural hand" — is over. The Court has shuffled the cards, a new deal is on the table and we go forward.

DATED: May 4, 2016

_____________________________________

Richard A. Dollinger, A.S.C.J. Footnotes

Footnote 1:The defendant also moved to dismiss the complaint because the wife was not competent as a matter of law. The court deals with this issue at the end of this opinion.

Footnote 2:Importantly, this allegation under subdivision 2 of Section 230 of the Domestic Relations Law is the only asserted basis for establishing the residency requirement under the statute. None of other subdivisions are alleged in the verified complaint. NY DRL § 230.

Footnote 3:This Court acknowledges that the email from the son cannot be construed as an admission by his mother and construed against her interest. However, it is a sworn statement by a party aligned with the plaintiff — her son — and, in its search of the record, this Court ascribes it some weight in resolving this factual dispute.

Footnote 4:Notably, affidavits from the plaintiff's Texas attorney and her appointed guardian both attest that the plaintiff wife repeatedly told her Texas attorneys that she wanted to be divorced from the defendant.