On May 12, 1983, plaintiff wife and defendant husband were married. In 1985 defendant was convicted of murder and robbery and sentenced to a prison term of 25 years to life. Defendant was incarcerated since the date of his arrest. Plaintiff was convicted of the same crimes as defendant and was incarcerated. On April 10, 2000, plaintiff commenced an action for divorce on the ground that defendant has been confined for a period of three or more consecutive years after their marriage ( Domestic Relations Law 170 [3]). Plaintiff moved for summary judgment of divorce and in opposition, defendant asserted defenses, including the five-year statute of limitations in Domestic Relations Law 210. Supreme Court dismissed plaintiff's action on summary judgment. The Appellate Division affirmed.

The Court of Appeals reversed. It held that a cause of action for divorce based on the ground of imprisonment continues to arise anew for statute of limitations purposes on each day the defendant spouse remains in prison for "three or more consecutive years" until the defendant is released. The purpose of the requirement that the defendant be incarcerated for three years prior to the commencement of an action for divorce is to give the convicted party an opportunity to obtain release from prison and to prevent the "natural but sometimes too rash inclination to dissolve a marriage" upon a spouse's conviction. Nothing in the legislative history suggests, however, that Domestic Relations Law 170 (3) was intended to start the statute of limitations running against the plaintiff spouse as early as possible so as to create the potential for a spouse, who may have missed the five-year window. The words "or more" in Domestic Relations Law 170 (3) suggest that divorce actions based on imprisonment are actions involving recurring injuries to the parties which implicate the continuous wrong doctrine. The rule is based on the principle that continuous injuries create separate causes of action barred only by the running of the statute of limitations against each successive trespass. The repeated offenses are treated as separate rights of action and the limitations period begins to run as to each upon its commission. Under a continuous wrong or violation rule, where a defendant spouse is incarcerated for a consecutive period exceeding three years, each day of continued confinement beyond three years inflicts new injury on the plaintiff spouse. Thus, although this ground for divorce arises originally at the conclusion of the third consecutive year of a defendant's incarceration, it continues to arise anew each day thereafter until the defendant is released from prison. An action based on this continuous wrong is barred only by the expiration of the five-year limitations period measured from the date upon which the defendant is released from prison.