        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

446
CA 11-02168
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


PATRICIA P. TUPER, PLAINTIFF-RESPONDENT,

                    V                                OPINION AND ORDER

KENNETH E. TUPER, DEFENDANT-APPELLANT.


BARNEY & AFFRONTI, LLP, ROCHESTER (FRANCIS C. AFFRONTI OF COUNSEL),
FOR DEFENDANT-APPELLANT.

ZIMMERMAN & TYO, ATTORNEYS, SHORTSVILLE (JOHN E. TYO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Ontario County
(William F. Kocher, A.J.), entered July 5, 2011 in a divorce action.
The order denied the amended motion of defendant to dismiss the
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Opinion by LINDLEY, J.: In this matrimonial action, defendant
husband appeals from an order adopting the amended report of the
Referee and denying defendant’s amended motion to dismiss the
complaint, which asserted a single cause of action under the “no-fault
divorce” statute based on an alleged irretrievable breakdown in the
parties’ relationship for a period of at least six months (see
Domestic Relations Law § 170 [7]). In support of his amended motion,
defendant contended that the complaint should be dismissed pursuant to
CPLR 3211 (a) (5) because the action was time-barred and pursuant to
CPLR 3211 (a) (7) because the complaint failed to comply with the
pleading requirements of CPLR 3016 (c). We conclude that Supreme
Court properly denied defendant’s amended motion.

     The parties were married in 1973 and have been separated since
November 1996, when plaintiff wife moved out of the marital residence
and commenced a divorce action based on allegations of cruel and
inhuman treatment. Defendant opposed the divorce and, following a
nonjury trial, the court determined that plaintiff failed to establish
grounds for the divorce and therefore dismissed the complaint with
prejudice. In February 2011, approximately four months after the no-
fault statute took effect, plaintiff commenced this action. The
complaint alleges in conclusory fashion that the parties’ relationship
has been irretrievably broken for at least six months. No facts are
alleged in support of that assertion. Defendant thus contends that
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the complaint fails to comply with CPLR 3016 (c), which provides that,
“[i]n an action for separation or divorce, the nature and
circumstances of a party’s alleged misconduct, if any, and the time
and place of each act complained of, if any, shall be specified in the
complaint . . . .” We reject that contention. Because a cause of
action for divorce under Domestic Relations Law § 170 (7) does not
require a showing of any “misconduct” by either party, the
requirements of CPLR 3016 (c) are inapplicable.

     In any event, even assuming, arguendo, that a plaintiff seeking a
divorce under the no-fault statute is required to plead facts
sufficient to demonstrate that the marriage is broken down
irretrievably rather than simply allege as much in conclusory terms
(see generally CPLR 3211 [a] [7]; Goldin v Engineers Country Club, 54
AD3d 658, 659-660, lv dismissed in part and denied in part 13 NY3d
763), we note that “ ‘[i]n assessing a motion under CPLR 3211 (a) (7)
. . . a court may freely consider affidavits . . . to remedy any
defects in the complaint’ ” (Parker v Leonard, 24 AD3d 1255, 1256,
quoting Leon v Martinez, 84 NY2d 83, 88; see Rovello v Orofino Realty
Co., 40 NY2d 633, 635-636; Thomas v Thomas, 70 AD3d 588, 591). Here,
the affidavit submitted by defendant in support of his amended motion
to dismiss cured any alleged pleading defects in the complaint.
Defendant stated that he and plaintiff have been separated since 1996
and that they have not communicated with each other within the past
five years. Those allegations, accepted as true, clearly establish
that the parties’ relationship has been irretrievably broken for far
more than the required six months, which leads us to defendant’s
remaining contention with respect to the statute of limitations.

     We agree with defendant that a cause of action under the no-fault
statute is subject to the five-year limitations period set forth in
Domestic Relations Law § 210. We do not agree with defendant,
however, that this action is time-barred inasmuch as plaintiff failed
to commence it within five years of the date that the parties’
relationship initially became irretrievably broken. In our view, a
cause of action for divorce under the no-fault statute should be
treated similarly to a cause of action for divorce based upon
imprisonment of a spouse (see § 170 [3]), which is also governed by
the five-year statute of limitations set forth in section 210. In
Covington v Walker (3 NY3d 287, 291, rearg denied 4 NY3d 740, cert
denied 545 US 1131), the Court of Appeals held that a cause of action
for divorce based on imprisonment “continues to arise anew for statute
of limitations purposes on each day the defendant spouse remains in
prison for ‘three or more consecutive years’ until the defendant is
released.” Like a spouse serving a life sentence, an irretrievable
breakdown in a married couple’s relationship is a continuing state of
affairs that, by definition, will not change. After all, the
breakdown is “irretrievable.” It thus stands to reason that a cause
of action under the no-fault statute may be commenced at any time
after the marriage has been “broken down irretrievably for a period of
at least six months” (§ 170 [7]; see Covington, 3 NY3d at 292-293; see
also Strack v Strack, 31 Misc 3d 258, 261).

     We note that a contrary ruling would force a spouse such as
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                                                         CA 11-02168

plaintiff “to unwillingly remain in a dead marriage” (Covington, 3
NY3d at 291). Indeed, if the accrual date of a no-fault cause of
action were to be determined as defendant suggests so as to arise only
on the day that the relationship initially became irretrievably
broken, assuming that an exact date could even be pinpointed, the only
couples who could get divorced under the no-fault statute would be
those whose relationships irretrievably broke down within the past
five years but not within the last six months. Couples whose
relationships irretrievably broke down more than five years ago would
have to remain married. That is inconsistent with the general intent
of the Legislature in enacting the no-fault statute, which was to
“enable[] parties to legally end a marriage which is, in reality,
already over and cannot be salvaged” (Senate Introducer Mem in
Support, Bill Jacket, L 2010, ch 384, at 13).

     We further note that the purpose of the statute of limitations is
“to afford protection to defendants against defending stale claims
after a reasonable period of time had elapsed during which a person of
ordinary diligence would bring an action” (Flanagan v Mount Eden Gen.
Hosp., 24 NY2d 427, 429; see Matter of Depczynski v Adsco/Farrar &
Trefts, 84 NY2d 593, 596-597). That purpose is not impeded by our
determination in this case inasmuch as plaintiff, in attempting to
establish her cause of action, will be relying on facts and
circumstances arising within 5½ years of commencement of the action.1
Moreover, because the no-fault statute did not take effect until
October 12, 2010, plaintiff could not have commenced this action
before that date. It therefore cannot be said that plaintiff “slept
on her rights” or otherwise acted in a dilatory manner to defendant’s
detriment.

    Accordingly, we conclude that the order should be affirmed.


Entered:   June 8, 2012                        Frances E. Cafarell

     1
         During the debate in the New York State Assembly over
the bill that became the no-fault statute, the Assembly sponsor
of the legislation, Assemblyman Jonathan Bing, was asked directly
by a fellow member of the Assembly whether a defendant in a no-
fault case would have a right to contest the plaintiff’s
allegations at a jury trial. “Yes,” Assemblyman Bing responded.
“I can’t imagine that happening frequently, but yes, technically,
that possibility would exist” (NY Assembly Debate on Assembly
Bill A9753-A, July 1, 2010, at 238). Bing repeatedly stated
“that the legislation does not take away any grounds or any
procedural maneuver or anything that currently exists under the
law” (id. at 231, 237), and that the allegation of an
irretrievable breakdown in the marital relationship can be
“contested” (id. at 236). Bing’s representations appear
consistent with the fact that the Legislature, upon enacting the
no-fault statute, did not amend Domestic Relations Law § 173,
which reads: “In an action for divorce there is a right to trial
by jury of the issues of the grounds for granting the divorce.”
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              CA 11-02168

      Clerk of the Court
