Opinion
June 4, 1990
Appeal from the Supreme Court, Kings County (Rigler, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the provision thereof granting the plaintiff leave to replead is deleted.
The plaintiff wife opposed the defendant husband's motion pursuant to CPLR 3211 (a) (7) to dismiss her cause of action for a divorce on the ground of cruel and inhuman treatment only orally through counsel. The nature of that opposition is not set forth in the record and there is no indication that the plaintiff requested leave to replead or that she disclosed evidentiary facts which would justify the granting such a request (see, CPLR 3211 [e]; Bardere v. Zafir, 63 N.Y.2d 850; cf., Sanders v Schiffer, 39 N.Y.2d 727). Under the circumstances, it was error for the Supreme Court to afford the plaintiff leave to replead the first cause of action. Sullivan, J.P., Harwood, Balletta and Miller, JJ., concur.