Gage v. Rentze , 59 Misc. 2d 334 ( 1969 )

Marshall E. Livingston, J.

This is a motion for summary judgment, pursuant to CPLR 3212, which the defendant opposes.

The subject of this action is based on child support payments under an annulment decree, which, it is alleged, are in default.

The child of the marriage is Susan Ann Rentze, and the arrearage in support payments is for her benefit and not for the plaintiff in this action. In my judgment, assuming that plaintiff has standing to bring this action, the infant is a party who should have been joined, pursuant to CPLR 1001 (subd. [a]).

Therefore, I am treating defendant’s cross motion as a motion to dismiss plaintiff’s complaint, pursuant to CPLR 3211 (subd. [a], par. 10). (See 4 Weinstein-Korn-Miller, N. Y. Civ. Prac.. par. 3211.45.)

Plaintiff’s complaint is dismissed, without prejudice to a new proceeding brought pursuant to section 244 of the Domestic Relations Law, which in this case especially affords a vehicle for the assured protection of the infant’s interest (Kahn v. Sampson, 23 A D 2d 539; St. Germain v. St. Germain, 25 A D 2d 568).