Opinion
June 5, 1967
In an action to declare the nullity of a marriage, order of the Supreme Court, Westchester County, entered November 7, 1966, which granted plaintiff's motion to examine defendant Ann Marie Dente with respect to her residence and domicile at the time she obtained a divorce from her former husband in the State of Alabama, affirmed, without costs. The examination shall proceed as provided in said order, upon 10 days' notice or at such time and place as the parties may stipulate. Although it is doubtful that plaintiff has a meritorious cause of action (see Weisner v. Weisner, 17 N.Y.2d 799; Magowan v. Magowan, 19 N.Y.2d 296), there has been no motion, so far as the record discloses, to dismiss the complaint for insufficiency or for summary judgment and the complaint is not so patently insufficient, in view of the allegation of fraud contained therein (cf. Aiello v. Aiello, 272 Ala. 505; Parrish v. Parrish, 50 Misc.2d 827, 830, 831), as to preclude the examination to the limited extent provided by the order appealed from (cf. Grossmann v. Wagner, 161 Misc. 1; Matter of Ryder, 275 App. Div. 994). As to the propriety of the examination, see Grinnell v. Grinnell ( 15 A.D.2d 468), and Matter of Goodman v. Goodman ( 25 A.D.2d 646). Ughetta, Acting P.J., Christ, Brennan, Hopkins and Nolan, JJ., concur.