Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: HON. PATRICIA P. SATTERFIELD IA PART 51
AUDREYGIGLIOBIANCO,
:
Plaintiff,
:
Index No: 26787-94
:
Motion Date: Oct. 13, 1999
-against -
:
Motion Cal.
:
DANIEL GIGLIOBIANCO, :
Defendant. :
The following papers numbered 1 to 8 read on this motion by defendant (husband) for an order dismissing the cause of action due to plaintiff's purported failure to comply with Domestic Relations Law Section 253. Plaintiff, by cross-motion, opposes the motion and seeks sanctions and attorney's fees.
PAPERS
NUMBERED
Notice of Motion-Affidavit-Exhibits.......................................... 1 - 2
Cross-Motion-Affidavits-Exhibits..............................................3 - 5
Reply........................................................................................
6 - 7
Affirmation-correspondence...................................................... 8 - 9
Upon the foregoing papers, it is ordered that this motion is decided as follows:
The parties in this action were married by Roman Catholic clergy. This action for a divorce was commenced in 1994, but to date, the case has not come to conclusion.
Defendant now moves to dismiss this action for a divorce because the plaintiff has not filed application with the Roman Catholic Church for an annulment. This Court, for purposes of the instant application, takes judicial notice of the fact that, within the eyes of the Roman Catholic Church, a person may not remarry unless the prior marriage is annulled by the Church. Defendant claims that plaintiff's refusal to apply for an annulment mandates dismissal of this action for a civil divorce.
DRL Section 253 (2) mandates that the plaintiff in a divorce action take any and all steps that are solely within her power to take (emphasis added). More commonly referred to as the AGet@ statute, DRL 253 was enacted to curb the withholding of a religious divorce when the ability to obtain one is vested solely within the power of one party (see practice commentaries, DRL Section 253). In the Jewish religion, the ability to obtain a AJewish divorce@ (more properly known as a AGet@) is vested solely with the husband, and this statute, as enacted, encourages plaintiff/husbands to obtain a religious divorce.
Defendant in this action has failed to demonstrate that the ability to apply for an annulment is vested solely with plaintiff. In fact, defendant's answering papers filed in support of the present motion, included, as an exhibit, a pamphlet issued by the Archdiocese of New York which states AOne of the marital partners can petition a Church court to investigate the canonical validity of a particular marriage (emphasis added ).@ Thus, by defendant's own exhibit, it is clear that Mr. Gigliobianco can apply for an annulment in the Roman Catholic Church. There is no power that is solely vested with the wife before an annulment may be granted in this matter by the Roman Catholic Church.
Additionally, the clear unambiguous reading of DRL Section 253 (6) mandates that the present application be denied. DRL 253 (6) specifically states that A>All steps solely within his or her power= shall not be construed to include application to a marriage tribunal...to annul...a marriage under the rules of such denomination.@ DRL Section 253 (6) speaks only to the issue of religious divorces and specifically precludes mandating an application for a religious annulment prior to entry of a civil divorce.
Therefore, defendant's application to dismiss this action for a divorce due to plaintiff's refusal to apply for a religious annulment is denied.
Plaintiff, by cross-motion, seeks sanctions and fees pursuant to 22 NYCRR 130-1.1 for the instant motion.
The rules of the Chief Administrator state:
130-1.1 (a) A The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court...costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees resulting from frivolous conduct.@ Conduct is frivolous conduct if it is completely without merit in law or is undertaken primarily to delay or prolong the resolution of the litigation (22 NYCRR 130.1.1 (c)).
In the instant matter, defendant's motion to dismiss this action, which has been pending for more than five years,was without merit in law or fact. DRL 253 clearly exempts religious annulments and defendant's reliance on DRL 253 was completely without merit in law and cannot be not supported by any reasonable argument for an extension, modification or reversal of existing law. The clear unambiguous reading of the Archdiocese pamphlet submitted by defendant proves that defendant has the ability to seek a religious annulment. An application for an annulment is not solely within the power of plaintiff and is not a condition precedent to the granting of a divorce in New York State.
This Court notes that less than ten weeks ago, defendant, in an affidavit submitted to this Court, stated that he had no opposition to a divorce in this matter. This Court finds that defendant's present effort to dismiss this action is completely without merit in law or fact and appears to have been undertaken primarily to delay or prolong the resolution of this matter. Therefore, plaintiff's application for attorney's fees is granted. Defendant is directed to forward directly to plaintiff's counsel the sum of Seven Hundred and Fifty dollars ($750.00) within fifteen (15) days of notice of entry of this decision.
Plaintiff, by application dated September 24, 1999, sought sanctions due to defendant's failure to appear for an examination before trial on September 22, 1999. Defendant opposed that request. That application is denied, without prejudice to renew, if defendant fails to appear for examination on the next scheduled date.
This constitutes the decision and order of the court.
Dated: Queens, New York
October 25,1999
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J.S.C.