There are generally two ways to start a
divorce action, one is by Complaint and the other is by serving a Summons with Notice. One of the benefits of starting an action by serving a Summons with Notice is that according to CPLR Rule 3217(a)(1) a Summons with Notice can be discontinued at any time, without cause or judicial involvement. The case below affirms that notion and adds to it that even where their has been a stipulation that the divorce would be uncontested, that does not constitute ones waiver of their right to dismiss such an action at their discretion.
Ressa v. Ressa, 350291/06
Decided: November 8, 2007
Justice Jacqueline W. Silbermann
NEW YORK COUNTY
Supreme Court
Defendant brings two applications by Order to Show Cause: (1) to vacate the Notice of Discontinuance filed by the Plaintiff in this matrimonial action and for restoration of the case; and (2) for accountants, appraisers and counsel fees pursuant to DRL §237. The Plaintiff submitted papers opposing the motion to vacate the Notice of Discontinuance. In response to the fee application, the Plaintiff submitted a letter asserting that the motion for interim counsel and expert fees "should be marked as being disposed of as moot."1
The Motion to Vacate the Notice of Discontinuance
Defendant's motion to vacate the Notice of Discontinuance poses a novel question of first impression to this Court, that is: whether a stipulation made in a preliminary conference order, to the effect that the issue of fault is resolved and that the Defendant was entitled to take a divorce against the Plaintiff on the grounds of constructive abandonment, constitutes a waiver of the Plaintiff's right to discontinue the action pursuant to CPLR Rule 3217(a)(1), prior to service of pleadings.
This action was commenced by the filing of a Summons with Notice for a Divorce on May 16, 2006. No complaint was served either with the Summons with Notice or at any subsequent time. During the preliminary conference held on December 5, 2006, a preliminary conference order was negotiated between the parties which includes a stipulation that: "the Parties agree that Defendant shall proceed with [an]
uncontested divorce against Plaintiff on the grounds of constructive abandonment". The signatures of each of the parties and their attorneys immediately follow that stipulation, on the same page of the preliminary conference order.
Some months after the preliminary conference, the Defendant made an application for pendente lite relief seeking over $300,000 as interim counsel fees, real estate appraisal fees and forensic accounting fees. That application was withdrawn and is now resubmitted. Shortly after receiving Defendant's fee application, the Plaintiff filed a Notice of Discontinuance pursuant to CPLR Rule 3217(a)(1). The Defendant seeks to vacate the discontinuance and to have the case restored.
In support of her motion, Defendant asserts that Plaintiff's stipulation, in the preliminary conference order, that "Defendant shall proceed with an
uncontested divorce on the grounds of constructive abandonment," constitutes a binding waiver by Plaintiff of his right to discontinue the action pursuant to CPLR Rule 3217(a)(1). There is precedent for the enforcement of such a stipulation in Pappas v. Pappas, 294 A.D.2d 121, 171 N.Y.S.23d 404 (1st Dept' 2002), where the Appellate Division, First Department held that a stipulation to the effect that the issue of fault was resolved, was binding on a record showing that the Plaintiff had been represented by counsel who had clear authority to sign open-court stipulations, that the Plaintiff was present and participated in discussions on the resolution of the issue of fault at time the stipulation was made. Similarly, in the present case, the Plaintiff was present in court, with counsel, during the preliminary conference and both Plaintiff and his lawyer signed the page containing the stipulation indicating that fault was resolved. However, the Pappas decision does not address the present circumstance where a notice of discontinuance was filed after the stipulation waiving grounds for the divorce was made but prior to the service of a complaint.
The Plaintiff relies upon his absolute and unconditional right to discontinue the action prior to service of a complaint without seeking judicial permission, pursuant to CPLR Rule 3217(a)(1), as recognized by the Court of Appeals in Battaglia v. Battaglia, 59 N.Y.2d 778, 451 N.E.2d 472, 464 N.Y.S.2d 725 (1983). See also, McMahon v. McMahon, 279 A.D.2d 346,348, 718 N.Y.S.2d 353 (1st Dep't 2001).
In Giambrone v. Giambrone, 140 A.D.2d 206, 208, 528 N.Y.S.2d 58 (1st Dep't 1998), the First Department held that the plaintiff's statutory right to discontinue the action, prior to service of a responsive pleading, is unconditional and that the court should not invoke its equitable powers absent special circumstances indicating deviousness, trickery or fundamentally unfair conduct. Here, Defendant offers no evidence of such special circumstances while Plaintiff explains his conduct in discontinuing the action as an attempt to promote a marital reconciliation with the Defendant.
Defendant asserts that Battaglia, McMahon, Giambrone and that line of cases are inapposite because they did not involve circumstances where resolution of the issue of fault, including how the parties would proceed, had been stipulated in a preliminary conference order. Defendant asserts that the stipulation as to grounds constitutes a waiver of the right to discontinue the action. "Waiver is an intentional relinquishment of a known right and should not be lightly presumed." Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968, 525 N.Y.S.2d 793 (1988). See also, Silverman v. Silverman, 304 A.D.2d 41, 46, 756 N.Y.S.2d 14 (1st Dep't 2003); Ess & Vee Acoustical & Lathing Contractors, Inc. v. Prato Verde, Inc., 268 A.D.2d 332, 702 N.Y.S.2d 38 (1st Dep't 2000).
In this case, there is no evidence of a clear manifestation of an intent to waive a known right, i.e. the right to discontinue the action under CPLR 3217(a)(1). The stipulation was silent as to that rule. There is no evidence that the Plaintiff understood that his signature below the stipulation as to grounds would act as a waiver of his rights under CPLR Rule 3217(a)(1). Under the circumstances of this case, there is no basis to find that the Plaintiff intentionally and knowingly waived his right to discontinue the action prior to the filing of a responsive pleading. Therefore, the motion to vacate the Notice of Discontinuance must be denied.
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