Friedman v. Kallayee

In an action to recover for necessaries expended on behalf of the parties’ child, plaintiff appeals from an order of the Supreme Court, Nassau County (Robbins, J.), entered November 19, 1981, which granted defendant’s cross motion to dismiss plaintiff’s complaint for failure to state a cause of action and denied plaintiff’s motion to dismiss certain affirmative defenses. Order reversed, on the law, with $50 costs and disbursements, defendant’s cross motion to dismiss the complaint is denied and plaintiff’s motion to dismiss the affirmative defenses of failure to state a cause of action and lack of jurisdiction is granted. Plaintiff’s action to recover for necessaries furnished by her on behalf of the parties’ child states a cause of action notwithstanding the absence of a child support provision in the parties’ divorce decree (see Laumeier v Laumeier, 237 NY 357; Home v Horne, 22 NY2d 219; Nelson v Nelson, 72 AD2d 693; see, also, Family Ct Act, § 461; Father’s Liability for Support of Child, Ann., 91 ALR3d 530, and cases cited therein). Jurisdiction was properly obtained by personal service of the defendant within the State (see Drazin v Drazin, 31 AD2d 531). O’Connor, J. P., Thompson, Niehoff and Rubin, JJ., concur.