Palermo v. Palermo

35 Misc.3d 1211 (2011)

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Nature of the Case

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Facts

H and W were married in 1977. In September 2000, W moved out of the marital residence. In 2001, W commenced a divorce action against H on grounds of cruel and inhuman treatment, and a jury returned a verdict of no cause for action. In February 2011, W again filed a verified complaint, this time on the grounds that the marital relationship had broken down for a period in excess of six months. H answered, denying the allegations, and asserting an affirmative defense that the couple had lived separate and apart for a period of at least 10 years. H moved to dismiss the wife's complaint, arguing that the statute of limitations had expired on her claims, that they were barred by res judicata, and that the complaint failed to state a cause of action. W cross-moved to replead the claim under DRL § 170(7) to include the specific allegation that the marriage was irretrievably broken for a period of greater than six months.