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Supreme Court, Appellate Division, Fourth Department, New York.

Jeanne S. YOUNGKRANS, Respondent, v. David C. YOUNGKRANS, Appellant.

Decided: December 31, 1997

Before PINE, J.P., and LAWTON, HAYES, WISNER and BOEHM, JJ. Parker & Haggas by Richard Parker, New York Mills, for Defendant-Appellant. Richard N. Bach, Utica, for Plaintiff-Respondent.

Although the parties consented to a divorce based upon the verified complaint and defendant withdrew his answer, Supreme Court erred in awarding plaintiff a judgment of divorce on the ground of cruel and inhuman treatment.   A judgment of divorce may be entered on consent “only upon competent oral proof or upon written proof that may be considered on a motion for summary judgment” (Domestic Relations Law § 211).   There was no oral proof in this case, nor any written proof other than the verified complaint.   While CPLR 105(u) permits the use of a verified pleading as an affidavit, the verified complaint here lacks the necessary evidentiary detail (see, Scheinkman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 14, Domestic Relations Law § C211:6, at 751;  cf., Kellerman v. Kellerman, 187 A.D.2d 906, 907, 590 N.Y.S.2d 570).

Because the divorce was improperly granted, the marital property is not subject to equitable distribution (see, Domestic Relations Law § 236[B][5] [a];  Gulisano v. Gulisano, 214 A.D.2d 999, 626 N.Y.S.2d 644;  Marciano v. Marciano, 161 A.D.2d 1163, 555 N.Y.S.2d 518, lv. denied 76 N.Y.2d 707, 560 N.Y.S.2d 989, 561 N.E.2d 889).   In any event, any agreement between the parties concerning the distribution of marital property and maintenance did not comply with Domestic Relations Law § 236(B)(3) and is thus invalid (see, Sorge v. Sorge, 238 A.D.2d 890, 660 N.Y.S.2d 776;  James v. James, 202 A.D.2d 1006, 609 N.Y.S.2d 485;  Hanford v. Hanford, 91 A.D.2d 829, 458 N.Y.S.2d 418;  see also, Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209, 681 N.E.2d 376).

Judgment unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings.


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