COVINGTON v. WALKER
3 N.Y.3d 287 (2004)
819 N.E.2d 1025
786 N.Y.S.2d 409
RHONDA COVINGTON, Appellant,
CARLTON WALKER, Respondent.
Court of Appeals of the State of New York.
Argued September 14, 2004.
Decided October 26, 2004.
Morningside Heights Legal Services, Inc., New York City (Philip M. Genty, Peggy Cross and Edward Smock of counsel), for appellant.
Hancock & Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
The issue presented by this appeal is whether plaintiff's cause of action for divorce on the ground of imprisonment pursuant to Domestic Relations Law § 170 (3), brought 16 years after the commencement of defendant's confinement, is barred by the five-year statute of limitations as set forth in Domestic Relations Law § 210. Resolution of this question turns on whether the statute of limitations is measured from the date of defendant's third consecutive year of incarceration or from the date of his release from prison (see Domestic Relations Law § 170  [providing that an action for divorce may be maintained on the ground of the defendant's confinement in prison for a period of at least three consecutive years]). We conclude that the cause of action accrues on the date defendant completes his third consecutive year of incarceration, but the statute of limitations does not begin to run until the date he is released from prison. Thus, plaintiff's divorce action is not time-barred.I.
On May 12, 1983, plaintiff wife and defendant husband were married. Thereafter, on January 28, 1984, defendant was arrested for the shooting death and robbery of a cab driver. In 1985, he was convicted, upon a jury verdict, of murder in the second degree, robbery in the first degree and criminal possession of a weapon in the second degree, and sentenced to a prison term of 25 years to life. Defendant has been incarcerated since the date of his arrest. Plaintiff, who was convicted for the same crimes as defendant, is also incarcerated.
On April 10, 2000, plaintiff commenced this action for divorce on the ground that defendant has been confined for a period of three or more consecutive years after their marriage (see Domestic Relations Law § 170 ). Plaintiff moved for summary judgment of divorce pursuant to CPLR 3212, contending that no triable issues of fact exist. In opposition, defendant asserted a number of defenses including the five-year statute of limitations (see Domestic Relations Law § 210). Arguing that the five-year limitations period begins to run from the end of his third
continuous year of incarceration, defendant urged that the action is time-barred as it was commenced long after his eighth successive year in prison. In fact, defendant had been incarcerated for over 16 years at the time the action was commenced. Plaintiff responded that accrual of this cause of action for divorce is properly measured from any time after three years of continuous incarceration up until the date on which defendant is released from prison and, therefore, her action is timely.
Supreme Court dismissed plaintiff's action on summary judgment. A divided Appellate Division affirmed, the majority concluding that "[t]he imprisonment ground for divorce arose once the defendant had been incarcerated for three years, a date which is more than five years before the commencement of this action" (307 A.D.2d 908, 908 [2d Dept 2003]). Two dissenting Justices held that "the imprisonment ground is a continuing ground which terminates upon the imprisoned person's release from prison" (id. at 909). Plaintiff appeals as of right from the Appellate Division order based on the two-Justice dissent. We agree with the dissenters and now reverse.