Opinion
March 13, 1992
Appeal from the Supreme Court, Seneca County, Falvey, J.
Present — Denman, P.J., Green, Pine, Lawton and Doerr, JJ.
Order and judgment unanimously affirmed without costs. Memorandum: Plaintiff appeals from so much of an order and judgment that granted defendant's motion for summary judgment and dismissed plaintiff's complaint for divorce alleging abandonment and cruel and inhuman treatment. Defendant cross-appeals from a resettled order and judgment insofar as it failed to impose sanctions against plaintiff for filing a frivolous lawsuit. The court properly dismissed plaintiff's divorce complaint, brought on the same grounds as an earlier action that was dismissed at the end of plaintiff's proof. Here plaintiff alleged that defendant abandoned her because he refused her offer to return to the marital residence on May 18, 1989. In the earlier divorce action, however, plaintiff's complaint alleging defendant's abandonment was dismissed because it was determined that plaintiff abandoned defendant when she left the marital residence in August, 1986. Thus, since plaintiff's absence was not a temporary one and her offer to return was untimely, defendant had no duty to take her back and plaintiff's cause of action for abandonment was without merit (see, Solomon v Solomon, 290 N.Y. 337, 341-342; Bohmert v Bohmert, 241 N.Y. 446, 451-453; cf., Aghnides v Aghnides, 308 N.Y. 530, 532). Plaintiff's allegations of cruel and inhuman treatment are vague and conclusory and legally insufficient to state a cause of action given the high degree of proof required to terminate a marriage of long duration on that ground (see, Brady v Brady, 64 N.Y.2d 339).
The court properly denied defendant's application for sanctions. Defendant did not make a proper motion for such relief (see, CPLR 2214, 2215; 22 NYCRR 130-1.1 [d]) and, in any event, did not establish that plaintiff's action was frivolous as defined by the statute (see, CPLR 8303-a [c]; 22 NYCRR 130-1.1 [c]; cf., Mitchell v Herald Co., 137 A.D.2d 213, 218-219).