PATOUHAS v. PATOUHAS

2017-04302, Index No. 52354/16.

172 A.D.3d 1221 (2019)

98 N.Y.S.3d 887

2019 NY Slip Op 03979

Christine Patouhas, Respondent, v. Philip Patouhas, Appellant.

Appellate Division of the Supreme Court of New York, Second Department.

Decided May 22, 2019.


Ordered that the order is affirmed insofar as appealed from; and it is further,

Ordered that on the Court's own motion, the parties are directed to show cause why an order should or should not be made and entered imposing sanctions and/or costs, if any, including appellate counsel fees, against the defendant pursuant to 22 NYCRR 130-1.1 (c) as this Court may deem appropriate, by filing an original and four copies of their respective affirmations or affidavits on that issue, including the amounts of legal fees incurred by the plaintiff in connection with this appeal, in the office of the Clerk of this Court and serving one copy of the same on each other on or before June 21, 2019; and it is further,

Ordered that the Clerk of this Court, or her designee, is directed to serve the respective parties with a copy of this decision and order by regular mail; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

We agree with the Supreme Court's denial of that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (2) to dismiss the action (see Adams v Adams, 255 A.D.2d 535, 536 [1998]). The issue of whether the plaintiff established that the parties' marriage had irretrievably broken down for a period of at least six months through the submission of a statement to that effect under oath concerns the merits of the divorce action, not the court's competence to adjudicate it (see Lacks v Lacks, 41 N.Y.2d 71, 75 [1976]; Dickerson v Thompson, 73 A.D.3d 52, 56 [2010]; Adams v Adams, 255 AD2d at 536).

In addition, since the defendant has raised arguments on this appeal that appear to be "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" (22 NYCRR 130-1.1 [c] [1]), the appeal may be frivolous (see Curet v DeKalb Realty, LLC, 127 A.D.3d 914, 916 [2015]; Caplan v Tofel, 65 A.D.3d 1180, 1181-1182 [2009]). Accordingly, we direct the submission of affirmations or affidavits on the issue of whether, and in what amount, costs or sanctions in connection with this appeal should or should not be imposed on the defendant.


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