| Sanacore v Sanacore |
| 2010 NY Slip Op 04699 [74 AD3d 1468] |
| June 3, 2010 |
| Appellate Division, Third Department |
| Nina Sanacore, Respondent, v Michael Sanacore,Appellant. |
—[*1] Tully, Rinckey, P.L.L.C., Albany (Barbara King of counsel), for respondent. Margaret Donnelly, East Greenbush, attorney for the child.
Cardona, P.J. Appeal from an order of the Supreme Court (Nichols, J.), entered January 26,2010 in Columbia County, which, among other things, denied defendant's motion for summaryjudgment dismissing the complaint.
The parties were married in October 1987. In May 2008, plaintiff (hereinafter the wife)commenced this divorce action alleging cruel and inhuman treatment. After joinder of issue andsome discovery, defendant (hereinafter the husband) moved for summary judgment dismissingthe complaint for failure to state a cause of action or, in the alternative, partial summaryjudgment seeking, among other things, dismissal of portions of the complaint as time-barred orinsufficiently pleaded. Thereafter, although Supreme Court did grant the husband relief to theextent of allowing a further deposition of the wife, the court denied the husband's motion forsummary judgment based upon his failure to attach the relevant portion of the verified complaintto his motion papers.
Initially, despite the husband's argument that the record was sufficiently complete fordetermination of his motion, Supreme Court specifically identified that portion of the verifiedcomplaint that was missing and its relevance to the husband's request for relief. Notably, thefailure to attach the requisite pleadings to the moving papers generally requires denial of themotion (see CPLR 3212 [b]; Bonded Concrete v Town of Saugerties, 3 AD3d 729, 730 [2004],[*2]lv denied 2 NY3d 793 [2004]), although a dismissalunder those circumstances should be without prejudice to renewal (see Greene v Wood, 6 AD3d 976,977 [2004]; Welton v Drobnicki, 298 AD2d 757, 757 [2002]). In any event, on appeal,the failure to include the complete pleadings on the motion may be excused when the record onappeal is sufficiently complete to address the merits (see Welch v Hauck, 18 AD3d 1096, 1098 [2005], lvsdenied 5 NY3d 708 [2005]; Greene v Wood, 6 AD3d at 977; General MotorsAcceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [1992]). Accordingly,inasmuch as the record herein contains a complete copy of the verified complaint, we will, in theinterest of judicial economy, address the husband's motion (see Welch v Hauck, 18AD3d at 1098; General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d at 895n).
In this matter, the husband contends that the conduct alleged by the wife amounts touncorroborated claims of incompatibility and her allegations are insufficient to meet thestandards for a divorce on the basis of cruel and inhuman treatment (see DomesticRelations Law § 170 [1]). Notably, a divorce under this section requires a showing ofserious misconduct and, with a long-standing marriage, a high degree of proof showing a patternof cruel and inhuman treatment affecting the plaintiff's physical or mental health such thatcontinued cohabitation would be unsafe or improper (see Brady v Brady, 64 NY2d 339,343-344 [1985]; Kung v Kung, 69AD3d 1295, 1295 [2010], see alsoMcMahon v McMahon, 42 AD3d 787, 788 [2007]).
Upon review of this record, including, among other things, the transcript of the wife'sdeposition testimony and the verified complaint, we do not agree with the husband's claim thathe presented a prima facie showing that the verified complaint should be summarily dismissed.The allegations by the wife go beyond "mere incompatibility" (Brady v Brady, 64 NY2dat 343). Among her claims she alleges that, on various occasions during this long-term marriage,the husband abused her physically, including pushing, shoving and bruising her. She indicatedthat he verbally abused her, denigrated her appearance, ridiculed her and subjected her to angrytirades in front of the children. She also alleged that he would threaten or intimidate her whenshe tried to leave him. As a result of this alleged conduct, she claimed she received individualcounseling for depression and anxiety. Given these allegations, we conclude that the husbandfailed to meet his burden of submitting evidence demonstrating that the wife's cause of actionhas no merit (see CPLR 3212 [b]). Moreover, even assuming that the husband met thatburden, the wife's submissions, including an affidavit from a marriage counselor opining that thewife suffered emotional and psychological injury as a result of the husband's actions, createtriable issues of fact (see Domestic Relations Law § 170 [1]; Hadi v Hadi, 34 AD3d 1153, 1154[2006]).
Finally, we are unpersuaded by the husband's remaining arguments that partial summaryjudgment should have been granted dismissing portions of the verified complaint as deficient. Hecontends that certain of the allegations in the verified complaint occurred prior to the five-yearlimitations period of Domestic Relations Law § 210. However, when a spouse in a longduration marriage seeks to establish a general course of cruel and inhuman treatment, suchevidence is admissible notwithstanding that some of the events occurred outside of thelimitations period (see Sullivan v Sullivan, 188 AD2d 953, 954 n [1992], lvdenied 82 NY2d 653 [1993]; see also Moss v Moss, 251 AD2d 937, 938 [1998]).Moreover, while it appears that the wife did not set forth exact dates for certain of the allegationsin the verified complaint, our review indicates that the assertions nevertheless "sufficientlyapprise [the husband] of the misconduct [he] will be called upon to meet at trial" (Lerner vLerner, 65 AD2d 889, 889 [1978]). Accordingly, we find that the husband did not establishentitlement to partial summary judgment on the above grounds.[*3]
Mercure, Peters, Kavanagh and Garry, JJ., concur.Ordered that the order is affirmed, without costs.