NEW YORK COUNTY
Supreme Court

Decision and Order

The plaintiff-husband makes the within application, seeking inter alia: a declaratory judgment declaring the Notice of Discontinuance dated March 25, 2009 proper, or in the alternative an order vacating the Order of this Court dated November 24, 2008, granting an Order of Preclusion, granting leave to renew and vacating the prior pendente lite Order of this Court. The defendant opposes the plaintiff's motion, and appears to request that the Court deny said motion in its entirety.

The parties were married on September 21, 1986 and have one minor child.

On or about June 19, 2006, plaintiff commenced the present action against defendant seeking a judgment of divorce by service of Summons with Notice. On or about June 23, 2006, defendant filed a Notice of Appearance and Demand for a Complaint, which was followed by plaintiff's Verified Complaint dated July 5, 2006. Thereafter, defendant filed an Answer and Counterclaims dated August 11, 2006. Defendant's Answer responded to the allegations in plaintiff's complaint, but failed to state a specific cause of action for divorce or separation. As such, this court, by Order dated December 15, 2006 and entered December 22, 2006, granted defendant leave to amend her Counterclaim to include a cause of action for failure to support. On January 25, 2007, defendant served a document entitled Amended Verified Counterclaims, which included a Counterclaim for Divorce based upon constructive abandonment, but did not constitute a response to plaintiff's Complaint. On November 24, 2008, the present action was set down for trial. However, at this time neither party has established grounds for divorce, nor filed a note of issue. Following several attempts by both parties to conduct discovery, and the withdrawal of defendant's counsel, plaintiff filed a Notice of Discontinuance, dated March 25, 2009.

Plaintiff moved this court for this Order to Show Cause seeking a declaratory judgment declaring the Notice of Discontinuance dated March 25, 2009 proper. Plaintiff, pursuant to New York Civil Practice Law and Rules (CPLR) §3217, argues that as a result of defendant's improper amended pleading, she no longer has a responsive pleading in the case, and so he may voluntarily discontinue the present divorce action.

Generally, a plaintiff possesses the right to voluntarily discontinue his or her action. However, CPLR §3217 provides:

[a]ny party asserting a claim may discontinue it without an order by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier, and filing the notice with proof of service with the clerk of the court. [emphasis added]

Therefore, in order for plaintiff to discontinue his action by way of a notice of discontinuance, the defendant must not have served an adequate responsive pleading.

The requirements of a responsive pleading are set out in CPLR §3018, which provides in relevant part: "[a] party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial."

A Notice of Appearance and Demand for a Complaint do not constitute such responsive pleadings under CPLR §§3018 and 3217. See McMahon, v. McMahon, 279 AD2d 346 (1st Dept. 2001) (demand for a complaint does not constitute a responsive pleading); Giambrone v. Giambrone, 140 A.D.2d 206 (1st Dep't 1988) (plaintiff-husband entitled to discontinuance despite defendant-wife having served a notice of appearance).

A responsive pleading may include the Answer to a complaint, however, should the defendant amend said Answer, the Amended Answer replaces the original Answer, and so requires that that Amended Answer be an adequate responsive pleading. See CPLR §§3011 and 3025. In Halmar Distributors, Inc. v. Approved Manufacturing Corp, 49 AD2d 841 (1st Dept 1975), the court determined that since the plaintiff's amended pleading no longer contained a demand for a permanent injunction, it was a nullity, and that the action "must proceed as though the original pleading had never been served." In Keary v. Great Atlantic & Pacific Tea Co., Inc., 96 AD2d 499 (1st Dept 1983) the defendant waived his jurisdictional defense when he omitted a defense of lack of personal jurisdiction in his amended answer. In the instant matter, defendant amended her pleading by leave of Court. However, it did not include a response to plaintiff's complaint, but rather was an amended counterclaim. However, a counterclaim cannot stand alone as a responsive pleading. CPLR §3011 dictates that an "answer may include a counterclaim against a plaintiff… " Furthermore, "a counterclaim may only be interposed through service of an answer." Newman v. Newman, 245 AD2d 353, 665 N.Y.S.2d 423 (2d Dept 1997); See also, White v. National Bondholders Corp., 191 Misc. 536, affd. 273 App. Div. 963 (1st Dept 1948). Therefore, the purported amended counterclaim asserted by the defendant is a nullity.

Although discontinuing this action may present a burden on defendant, absent particularly egregious situations a CPLR 3217(a) notice of discontinuance should be permitted where statutory conditions are satisfied. See McMahon v. McMahon, supra at 349; Giambrone v. Giambrone, supra at 207. If, as the defendant claims, there is a basis for initiating her own action against plaintiff, she may commence an appropriate proceeding in the Supreme Court.

Therefore, plaintiff's motion for this Court to declare proper his Notice of Discontinuance dated March 25, 2009 is granted. As such, the instant action is discontinued upon notice.

Based on the foregoing the Court finds it is hereby:

ORDERED, the plaintiff's application for this court to declare his Notice of Discontinuance dated March 25, 2009 as proper is granted.

Plaintiff shall serve a copy of the within Decision, upon counsel for defendant and defendant, with notice of entry, within ten (10) days of entry.