Parsons v Parsons

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[*1] Parsons v Parsons 2005 NY Slip Op 50277(U) Decided on February 28, 2005 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 28, 2005
Supreme Court, Dutchess County

JOSEPH KENNETH PARSONS, Plaintiff,

against

LYNNE FRANCES PARSONS, Defendant.



001067/2004



Carol Morgan, Esq.

Law Office of Mitchell H. Spinac

Attorney for Plaintiff

325 Wall Street

PO Box 3748

Kingston, NY 12402

Victor G. Grossman, Esq.

Attorney for Defendant

9 Fair Street

Carmel, NY 10512

James D. Pagones, J.

Defendant moves for an order vacating plaintiff's note of issue; for an order compelling plaintiff's deposition and, in the alternative, for an order dismissing the action. The relevant facts are not in dispute on this motion. Plaintiff commenced this action by filing a summons with notice on March 9, 2004. The notice on the summons advised defendant that the object of the action was to obtain a judgment of divorce as well as ancillary relief. The plaintiff's counsel did not effect personal service upon the defendant and instead requested that defendant's attorney accept service on behalf of the defendant. On this motion, defendant's counsel does not indicate whether he acceded to that request nor has he provided any indication that he declined to accept service. Thereafter, the plaintiff filed a request for judicial intervention and the Court scheduled and conducted a preliminary conference with the parties and their respective attorneys. Defendant and her attorney appeared on the scheduled date and made no objection to the manner in which the summons with notice was served and raised no issue as to personal jurisdiction. After a conference with my principal court attorney, the parties and their attorneys signed a stipulation indicating that the issue of fault was resolved and that the only issues to be tried were the issues of maintenance and equitable distribution. As is my custom, I issued a preliminary conference order which contained the parties' stipulation as well as a discovery schedule, a compliance conference date, and a date for filing the note of issue.

DRL §232 permits a party to commence an action for divorce by filing and serving a summons with notice as set forth more particularly in that section. I find that the summons with notice filed by plaintiff herein comports in all regards with the requirements of DRL §232. CPLR §3012(b) permits service of a summons with notice and further provides that upon such service "a defendant may serve a written demand for the complaint within the time provided in subdivision (a) of Rule 320 for an appearance." CPLR §3012(b) also provides that "if no demand is made, the complaint shall be served within twenty days after service of the notice of appearance." A defendant, pursuant to CPLR Rule 320 may appear by serving an answer, by serving a notice of appearance or by making a motion effectively extending the time to answer. Such an appearance is equivalent to personal service of the summons unless an objection to jurisdiction is made. (CPLR Rule 320[b].) In this action, it appears that the plaintiff's prior counsel and defendant's counsel unilaterally determined to create their own set of practice rules to govern this action. Plaintiff's former counsel assumed that defendant's counsel had accepted [*2]service on behalf of the defendant which belief was corroborated by the lack of any objection to personal jurisdiction raised at the preliminary conference and by counsel's stipulation, joined by defendant, that the issue of fault had been resolved. However, plaintiff's former counsel failed to serve a complaint although CPLR §3012 requires such service even in the circumstances, such as presented herein, where defendant's counsel fails to make a demand and fails to formally appear. These gross derelictions of their respective statutory obligations notwithstanding, the parties' attorneys undertook to fully litigate this action as if they had complied with the Civil Practice Law and Rules. Defendant's counsel has waited until the filing of the note of issue to belatedly assert that the Court lacks jurisdiction to decide the parties' dispute. Counsel's affirmation in support of this motion is necessarily vague and highlights the fact that the parties have hoisted themselves onto this petard. Counsel neither denies nor acknowledges that he accepted service of the summons with notice thus allowing him to argue that the Court lacks personal jurisdiction. Plaintiff's former counsel spawned this argument by failing to obtain a written stipulation acknowledging service and defendant's appearance in the action. The plaintiff's former counsel contributed further to the morass by failing to serve a complaint as required. However, the Court cannot ignore the fact that the parties physically appeared for a preliminary conference, signed a written stipulation as to fault, and undertook to negotiate and litigate the issues of maintenance and equitable distribution for nine months. These efforts have consumed an extensive amount of time by the attorneys for both parties, have resulted in a considerable expense to the parties, and have involved a considerable amount of the Court's time in working with counsel toward a negotiated resolution of this action. It would amount to an abominable waste of judicial and private resources to dismiss this action at this juncture on the grounds advocated by defendant's counsel and the peculiar facts herein. CPLR §3012(b) provides that "the court upon motion may dismiss the action if service of the complaint is not made as provided in this subdivision." (emphasis added) The unequivocal statutory language provides that dismissal of the action for failure to serve a complaint is discretionary. I decline to exercise my discretion in this particular case on the facts presented. Therefore, it is ordered that defendant's motion to dismiss is denied.

Defendant seeks an order compelling the deposition of plaintiff, apparently pursuant to CPLR §3124. The defendant's counsel has failed to submit an affirmation of good faith effort as required by 22 NYCRR §202.7 and has not indicated in the affirmation submitted in support of this motion what good faith efforts, if any, he made to resolve this issue before filing the instant motion. 22 NYCRR §202.7 precludes the filing of any motion relating to disclosure without the necessary affirmation. Additionally, my preliminary conference order dated April 21, 2004 required the parties to complete all depositions on or before September 3, 2004. Defendant's counsel did not serve a notice to take deposition of plaintiff until January 12, 2005. For all the foregoing reasons, it is ordered that defendant's motion to compel plaintiff to appear at a deposition is denied.

Defendant also urges the Court to "strike" plaintiff's note of issue. 22 NYCRR §202.21(e) permits the Court to vacate a note of issue within twenty days after service of that note upon an affidavit showing in what respect the case is not ready for trial and permits the Court to vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect. The bases of defendant's motion to vacate the note of issue is that discovery is not completed and that the Court lacks jurisdiction. Based on my determinations herein, I find that [*3]defendant has failed to assert any grounds which would warrant vacating the note of issue herein. Therefore, it is ordered that defendant's motion to vacate plaintiff's note of issue is denied.

The Court read and considered the following documents upon this motion:

PAGES NUMBERED

NOTICE OF MOTION......................................................1 - 2

Affirmation - Grossman.........................................1 - 4

Exhibits.....................................................................A - C

Memorandum of Law..............................................1 - 5

AFFIRMATION - Morgan.................................................1 - 3

Exhibits.....................................................................A - B

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

February 28, 2005

E N T E R

HON. JAMES D. PAGONES, A.J.S.C.

To:

Parsons v. Parsons, 2.28.05

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