Affirmation in Support of Motion to Dismiss for Failure to State a Cause of Action

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__________ [Name], an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the truth of the following statements, upon information and belief, under the penalty of perjury:

1. I am an associate attorney of the Law Offices of __________ [Name], attorneys for the defendant, __________ [Name](“Defendant”), and as such I am fully familiar with all the prior proceedings in the above-referenced matter. This familiarity is based upon the books, records and files of Defendant in my possession.

2. I am submitting this affirmation in support of defendant's Notice of Motion seeking an Order pursuant to CPLR §3211(a)(7) dismissing the plaintiff’s Summons and Verified Complaint for an action for divorce and granting such other and further relief as to this Court may deem just and proper.

3. Plaintiff commenced the instant action for divorce by service of a summons and verified complaint upon the defendant on or about __________ [Date]. Plaintiff claims cruel and inhuman treatment by the defendant “that so endangered the physical or mental well-being of the Plaintiff so as to render it unsafe or improper for the parties to cohabit (live together) as husband and wife” as the grounds for divorce. (Emphasis added). Annexed hereto as Exhibit __ is a copy of plaintiff’s summons and verified complaint.

4. “In determining a motion to dismiss an action for failure to make out a prima facie case, the plaintiff’s evidence must be accepted as true and given the benefit of every reasonable inference which can reasonably be drawn from that evidence. The motion should only be granted if there is no rational process by which a fact-finder could find for the plaintiff as against the moving defendant.” Chan v. Chan, 193 A.D.2d 575, 597 N.Y.S.2d 422 (2nd Dept. 1993).

5. The parties were married on __________ [Date]. There is no child as a result of this marriage and no child is expected.

6. The parties had an exclusive courtship with each other for approximately _____ years before the date of their marriage.

7. The acts of cruelty alleged in the complaint consist of the following: that the defendant went out with his friends five (5) nights per week; that at least twice per week plaintiff asked the defendant not to go out with his friends, but instead to stay home with her and he refused; that at least twice per week the defendant “belittled the plaintiff and called her disparaging names, ignored the plaintiff when the plaintiff tried to talk to him, and picked fights with her”; that the defendant did not show up for a candlelight dinner the defendant requested the plaintiff make, but instead went out with his brother; that the defendant did not accompany the plaintiff to a wedding rehearsal dinner or the wedding the next day or to see her cousin’s newborn baby, but instead went out with his friends; and that the defendant went on a trip to Las Vegas, Nevada, without the plaintiff.

8. “To maintain an action for divorce on the ground of cruel and inhuman treatment, the complaint must allege a pattern of conduct by the defendant which so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabitate with the defendant.” Wilson v. Wilson, 244 A.D.2d 646, 663 N.Y.S.2d 710 (3rd Dept. 1997) (Domestic Relations Law §170[1]; see, Brady v. Brady, 64 N.Y.2d 339, 343, 486 N.Y.S.2d 891, 476 N.E.2d 290; Hessen v. Hessen, 33 N.Y.2d 406, 410, 353 N.Y.S.2d 421, 308 N.E.2d 891).

9. “[A] plaintiff seeking a divorce based upon cruel and inhuman treatment must show serious misconduct, not mere incompatibility . . .” Pone v. Pone, 129 A.D.2d 957, 515 N.Y.S.2d 338 (3rd Dept. 1987), citing Hessen v. Hessen, 33 N.Y.2d 406, 410, 353 N.Y.S.2d 421, 308 N.E.2d 891). “Cruelty implies wantonness or the intent to inflict suffering or conduct of such character as to seriously affect or impair the health of a spouse as to...