Stracquodaine v Stracquodaine
Annotate this CaseDecided on June 22, 2010
Supreme Court, Nassau County
Rosann Stracquodaine, Plaintiff
against
Stephen Stracquodaine, Defendant.
202795-07
REPRESENTATION:
ADAM MOSER, ESQ., Attorney(s) for Plaintiff, 11 CLINTON AVENUE, ROCKVILLE CENTRE, NY 11570, (516) 255-8391;
REISMAN, PEREZ & REISMAN, ESQS., Attorney(s) for Defendant, 1305 FRANKLIN AVENUE, GARDEN CITY, NY 11530 (516) 746-7799.
Edward A. Maron, J.
Plaintiff ("Wife") submits an application, pursuant to CPLR §3217 (b) for an order granting her voluntary discontinuance of the subject divorce action. Defendant ("Husband") opposes Wife's motion and cross-moves for an order a) denying Wife's motion; b) awarding him $17,155.00 in counsel fees for services rendered in this action; c) granting him leave to amend his answer to include a counterclaim for divorce; and d) awarding him an additional $3,500.00 in counsel fees for the necessity of having to oppose Plaintiff's application.
Background
The parties were married on July 24, 1982, and there are four (4) emancipated children of the marriage. Wife filed this action for divorce action on October 3, 2007 by Service of a Summons with Notice. Husband filed a Notice of Appearance on October 24, 2007. A Preliminary Conference was held and a neutral appraiser was appointed to value the marital residence at the Husband's expense, subject to reallocation at trial. On July 16, 2008, Wife filed a Verified Complaint and the Husband interposed a Verified Answer on August 4, 2008.
The appraisals and discovery were completed. Eight court appearances were held and the parties engaged in settlement discussions. The Certification Order was signed by the undersigned Justice on December 3, 2008. A grounds trial was set for March 3, 2009, on which date the parties entered into a Stipulation resolving the issue in the Wife's favor on the grounds of constructive abandonment, Wife further waived any claim for the equitable distribution of Husband's 401K, deferred compensation plan and his pension plan which were to remain his separate property. A pre-trial conference for the remaining issues was scheduled for April 7, [*2]2009 and the trial was scheduled to begin May 18, 2009. On April 23, 2009, Wife's attorney filed a voluntary discontinuance with the Nassau County Clerk.
Wife submits no affidavit in support of her application, but instead only an affirmation from her attorney which simply states that Wife no longer wishes to be divorced. Wife's attorney further affirms that Husband has no grounds for divorce, notwithstanding the Stipulation dated March 5, 2009, wherein Wife consented to a divorce in her favor on the grounds of constructive abandonment.
Husband argues that to permit Wife to discontinue at this stage in the litigation would be severely prejudicial to him. Husband claims that he has defended against this action since October 2007 at an expense he struggles to afford, with two children in college and a third about to enter graduate school. Further, he argues that the parties have already entered into a Stipulation, whereby the parties have resolved the grounds for the divorce, as well as the issue of equitable distribution with respect to his 401K and pension plan. He argues that discontinuance of this action would prejudice his ability to enforce the Stipulation without having to file a separate plenary action with additional legal expenses. Furthermore, he argues that the proposed discontinuance would also result in new valuation dates, and as a consequence, assets he has accumulated after the commencement of this action may be determined to be partially his responsibility, resulting in a potential windfall to Wife at Husband's expense. In addition to the $17,155.00 in legal fees incurred, Husband claims he also had to use many of his vacation days to attend numerous court conferences, an expense that would have to be repeated if Wife is permitted to discontinue this action and he is forced to file a new action. Moreover, a discontinuance would cause further delays in achieving the ultimate result, which is a dissolution of the marriage and the equitable distribution of the parties' assets.
Husband argues that since Wife states that she will not be proceeding on her course of action, he should be permitted to amend his Verified Answer to include a counterclaim for divorce. Husband did not file a counterclaim in this action based upon his reliance on the Stipulation of the parties, which resolved the issue of grounds. Husband proposes to include the same grounds for the divorce in his counterclaim that Wife originally asserted in her complaint and to which they stipulated. The proposed amendment for the inclusion of a counterclaim for divorce on the grounds of constructive abandonment should not come as a surprise to Wife. Wife has not submitted an affidavit attesting to any alleged prejudice by the proposed amendment.
Decision and Order
Section 217 (a) of the CPLR provides that any party asserting a claim may discontinue it without a Court order at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier. Once the responsive pleading is served, as in the subject action, CPLR § 3217(b) requires an order of the Court to discontinue an action, absent stipulation of all parties appearing in the action. Husband in this case, opposes the discontinuance.
A court may not grant a discontinuance of an action, pursuant to CPLR §104 nor §3217(b), where unfair prejudice will result to the adversary. See Kane v. Kane, 163 AD2d 568 (2nd Dept. 1990). The court must consider whether substantial rights have accrued or if the adversary's rights would be prejudiced thereby, as well as the stage that litigation has reached. [*3]Id. A court must more carefully scrutinize a plaintiff's motive for seeking such a discontinuance where an action is in a later the stage of litigation. See Tucker v. Tucker, 55 NY2d 378 (1982). Discontinuance is not permitted where substantial rights have accrued or where an adversary's rights would be prejudiced by the discontinuance. Id.
Based upon the foregoing, Wife's motion is DENIED in its entirety.CPLR § 3025 (b) states "a party may amend his pleading or supplement it by setting forth additional or subsequent transactions or occurrences at any time by leave of Court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just, including the granting of costs and continuances". However, "the decision as to whether to grant such leave is generally left to the sound discretion of the trial court, and its determination will not be lightly set aside. In exercising its discretion, the Court should consider how long the party seeking leave to amend was aware of the facts upon which the motion was predicated, whether reasonable excuse for the delay was offered and whether prejudice resulted therefrom." Koeth v. Koeth, 309 AD2d 786 (2nd Dept. 2003). "It is incumbent upon Plaintiff to show that prejudice should preclude the Defendant from amending his answer." Lermit Plastics Co. Inc., v. C.W. Lauman & Co., 40 AD2d 680 (2nd Dept. 1972). In consideration of the foregoing, branches "a" and "c" of Husband's motion are GRANTED, and Husband is granted leave to amend his answer to include the proposed counterclaim for divorce on the grounds of constructive abandonment in the same form attached to his papers as exhibits "I".
The Husband's request for counsel fees in the amount of $17,155.00 for all expenses incurred from the commencement of this proceeding was conditioned upon the Court's granting Wife the discontinuance. In light of this Court's decision to deny Wife's motion, branch "b" of Husband's motion is DENIED.
The Uniform Rules for Trial Courts Section 130-1.1 (a) provides: "The Court in its; discretion, may award to any party or attorney in any civil action or proceeding before the Court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct, as defined in this part." Section 130-1.1(c) (3) defines frivolous: "conduct is frivolous if (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation or to harass or maliciously injure another; or (3) it asserts material factual statements that are false."
Based upon the foregoing, the Court does not find Wife's conduct to have risen to the level of "frivolous" as defined in the statute. Accordingly, branch "d" of Husband's motion seeking an award of counsel fees in the sum $3,500.00 for the necessity of having to oppose Wife's motion is DENIED.
Accordingly, it is hereby
ORDERED that the parties and their counsel shall appear for a CONFERENCE on July 1, 2010 at 9:30 a.m. for a PRE-TRIAL CONFERENCE, which date shall not be adjourned without consent of this Court; and it is further
ORDERED that Defendant shall serve and file his proposed amended verified answer withing twenty days of the date of this order; and it is further
All matters not decided or requests for relief not granted herein are hereby DENIED. [*4]
This constitutes the decision and order of this court.
Dated:June 22, 2010
Mineola, New York
_______________________
Edward A. Maron, J.S.C.
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