Opinion
No. 5398.
June 23, 2011.
Order, Supreme Court, New York County (Ellen Gesmer, J.), entered on or about January 10, 2011, which, after a hearing, granted defendant's motion to dismiss the complaint on the ground that the residency requirement of Domestic Relations Law § 230 (5) had not been satisfied, unanimously affirmed, without costs.
Cohen Rabin Stine Schumann LLP, New York (Harriet Newman Cohen of counsel), for appellant.
Cheng Fasanya LLP, Rosedale (Ade Fasanya of counsel), for respondent.
Before: Concur — Tom, J.P., Friedman, Acosta, Renwick and DeGrasse, JJ.
Dismissal of this divorce action for failure to satisfy the two-year residency requirement of Domestic Relations Law § 230 (5) is warranted. Although the residency requirement of the statute is not jurisdictional in nature ( see Lacks v Lacks, 41 NY2d 71, 73; see also Casey v Casey, 39 AD3d 579, 579-580), and is a substantive element of the cause of action to be proven at trial ( see Rubin v Rubin, 73 AD2d 148, 150), the issue may be resolved at a pretrial hearing "in the interest of economy of effort and sound judicial management" ( Wilson v Wilson, 176 AD2d 115, 116).
Although the parties' entered into a stipulation providing, inter alia, that defendant would file any motion to dismiss by a certain date and the instant motion was filed after said date, the failure to file a timely motion did not constitute a waiver of the residence issue or an admission of the allegations in the complaint. Indeed, the record shows that following the deadline for a motion to dismiss, plaintiff continued to seek documentation establishing defendant's address.