Bourjolly v Mouscardy, 2011 NY Slip Op 05413 [85 AD3d 627]

June 23, 2011

Appellate Division, First Department

— [*1]

Cohen Rabin Stine Schumann LLP, New York (Harriet Newman Cohen of counsel), for appellant.

Cheng & Fasanya LLP, Rosedale (Ade Fasanya of counsel), for respondent.

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.

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 [1976]; see also Casey v Casey , 39 AD3d 579 , 579-580 [2007]), and is a substantive element of the cause of action to be proven at trial ( see Rubin v Rubin , 73 AD2d 148, 150 [1980]), 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 [1991]).

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. Concur—Tom, J.P., Friedman, Acosta, Renwick and DeGrasse, JJ..