Molinari v. Molinari

OPINION OF THE COURT

Robert F. Doran, J.

In this matrimonial action, the first affirmative defense is that the complaint fails to state a cause of action. The plaintiff has moved to strike the affirmative defense.

Defendant opposed the motion citing the decision of the Appellate Division, First Department, in Riland v Todman & Co. (56 AD2d 350). The court has tested that decision and found there is conflict between the Appellate Division, First Department, and Appellate Division, Second Department.

The Appellate Division, Second Department, holds that the defense that a claim fails to state a…