A.C. v D.R.

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[*1] A.C. v D.R. 2011 NY Slip Op 21057 Decided on January 18, 2011 Supreme Court, Nassau County Falanga, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on January 18, 2011
Supreme Court, Nassau County

A.C., Plaintiff

against

D.R. a/k/a D.C., Defendant D.R.C., Plaintiff A.C. Defendant



D.R.C., Plaintiff

against

A.C. Defendant



10-202115

Anthony Falanga, J.

The following papers were read on this motion:

Notice of Motion/Order to Show Cause........1

Affirmation in Opposition..............................2

Reply Affirmation in Support........................3

Plaintiff husband in Action #1, moves by order to show cause for an order, pursuant to CPLR §602(a), consolidating Action #2 into Action #1. Both Action #1 and Action #2 are matrimonial actions but Action #1 was filed on July 27, 2010, while Action #2 was filed on October 22,2010, after the effective date of the new matrimonial legislation, effective on October 12, 2010. The circumstances presented raises issues with respect to the newly enacted no fault ground for divorce ( DRL §170[7]), which is applicable to all actions commenced on or after October 12, 2010, as well as DRL §§236 and 237 mandates with respect to the granting of temporary support and counsel fees.

Marital and Litigation History

The parties were married on October 4, 1992. The wife is 48 and the husband is 52 years old. The parties have three (3) children:D.C., born September 1, 1997 (age 13), A.C., born July 3, 2000 (age 10) and N.C., born February 17, 2003 (age 7).

The parties and the children reside together in the marital residence, located in Cedarhurst, New York, purchased ono May 11, 2000 for $945,000.00. There is no outstanding mortgage on the residence. Title to the premises is in the name of the husband and the wife.

The wife has a masters degree in journalism, attained in 1990 and is presently a homemaker. The husband is a physician and earned his medical degree in 1983. He has monthly [*2]gross W-2 income of $15, 833.00, and is employed by A,A,of Westchester, PC..

A preliminary conference was held on January 12, 2011. Pursuant to the so-ordered preliminary conference stipulation, the parties agreed that the husband would pay the carrying charges on the marital residence pendente lite, including utilities, real estate taxes and homeowner's insurance and would maintain health insurance for the entire family and pay uncovered health expenses, provided the wife uses in network providers. Additionally, it was agreed that the husband would maintain the existing life insurance policy with a $500,000.00 death benefit. . Grounds was not resolved at the preliminary conference and the parties agreed to attend the P.E.A.C.E Program. .The appointment of a real estate appraiser to appraise the marital residence was deferred, however, by separate order, Mark S.Gottlieb, CPA, PC., was appointed to value the husband's interest in the medical practice, with the cost to be paid 100% by the husband, subject to reallocation at trial.

The wife paid a retainer of $15,000.00 with funds claimed to be pre-marital.. The husband paid a retainer of $11,000.00 with funds from marital savings.

On July 27, 2010, the husband commenced Action #1 for divorce by filing a summons and verified complaint with the Nassau County Clerk. When an objection to service was raised by the wife's counsel, in an abundance of caution, the husband's counsel served the wife a second time, both times within the 120 day service period. measured from the date of filing. It is asserted, without objection, that the wife was served on October 26, 2010 and issue was joined on November 15, 2010. The summons and verified complaint allege constructive abandonment as the ground for divorce.

The wife's answer has not been provided to the Court.

On October 22, 2010, four (4) days before she was served in the husband's action, the wife commenced Action #2 for divorce by filing a summons with notice, only, with the Nassau County Clerk, which was served on October 23, 2010. Counsel for the husband served a notice of appearance, dated October 25, 2010. The wife seeks a divorce based upon DRL § 170(7), the new no-fault ground where a marriage is "irretrievably broken for a period in excess of six months."

On the instant motion, the husband seeks consolidation of the wife's subsequently filed action into the husband's action for divorce, pursuant to CPLR §602(a), and asserts that consolidation is appropriate in that both actions seek divorce, resolution of custody, child support, equitable distribution, and other ancillary relief, and involve common issues of law and fact. It is counsel's position that Action #2 should be consolidated into Action #1 because it was commenced first and because both the summons and verified complaint were served. In addition, counsel offers that consolidation is favored and should be granted where, as here, the party opposing consolidation has failed to meet her burden of proof of demonstrating prejudice to a substantial right by the granting of consolidation, citing Maigur v. Saratogian, Inc., 47 AD2d 982, 367 NYS2d 114 (3rd Dept. 1975). It is the husband's position that no prejudice to a substantial right has been shown by the wife because the court will be able to deal with the issues of maintenance and counsel fees even if consolidation is granted.

In opposition to the motion, counsel for the wife states that consolidation herein is improper because both parties would end up as both plaintiff and defendant as a result of the necessary realignment, citing Bass v. France 80 AD2d 849, 418 NYS2d 43 (1st Dept. 1979). Furthermore, the applicable law is different in Action #2 as a result of the recent amendments to the Domestic Relations Law which are only applicable to actions commenced after October 12, 2010. It is claimed that consolidation of the actions would deny the wife the right to avail herself [*3]of the new statutory provisions and would be prejudicial to a substantial right. Counsel for the wife urges that setting the matters down for a joint trial, pursuant to CPLR §602(a) is a more appropriate remedy, citing Bofinger v. Bofinger, 107 Misc 2d 573, 435 NYS2d 652 ( Supreme Suffolk Co.1981).In Bofinger, the court was faced with a similar dilemma where one action was commenced prior to the enactment of equitable distribution and one action was commenced after said enactment. The court in Bofinger found that a joint trial rather than consolidation was preferable..

Analysis and Law

The date of commencement is the operative date, not the date of service ( CPLR §304) , and therefore the husband's action is first in time notwithstanding that it was served second.

CPLR §602(a) provides, as follows: Generally. When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Herein, the husband seeks consolidation of the wife's action into his action, while the wife would have the court direct a joint trial of the issues involved in the pleadings. The distinction is not a trivial one, as stated by Vincent Alexander in the Commentary to McKinney's CPLR §602: An order for a joint trial, . . . leave the individual actions intact. They are merely brought together in one venue for simultaneous pretrial and trial proceedings. The captions of the individual complaints remain the same, separate verdicts or decisions are rendered, separate judgments are entered and individual bills of costs are taxed.

In the instant case, the husband wishes to preserve his priority in time, perhaps for commencement date purposes under equitable distribution and the cause of action he has asserted, and that right should not be denied. Similarly, the wife wishes to proceed on her cause of action, either in the event the husband fails on his or , perhaps, under the concept of a dual divorce (see, De Marinis v. De Marinis 74 AD2d 815, 425, NYS2d 361 [2nd Dept. 1980]). Moreover, she may seek to pursue pendente lite relief under the new statutory guidelines which will only be available to her in Action #2, commenced after October 12, 2010. A party is not obligated to counter-claim in Action #1just because the husband has previously commenced such an action against her. Instead, the wife may assert an independent cause of action in a separate suit (Action #2) that will not be subject to dismissal on the ground that "there is another action pending between the same parties for the same cause of action"(CPLR §3211[a][4]), as long as the relief requested is different from that requested in Action #1 (see, Bofionger v. Bofinger, supra.) As stated by the Court of Appeals in Molter v. Molter, 60 NY2d 244, 469 NYS2d 586, 457 NE2d 691 (C.A. 1983), under CPLR §3019, counter-claims are permissive and a party may assert her claim against the plaintiff as a counter-claim or by bringing a separate suit. In permitting the wife to withdraw her counter-claim and commence a new action after the passage of the equitable distribution law, the Molter court found that a litigant should not be barred from receiving the benefits of the new law by being denied procedural remedies she is unconditionally entitled to under the CPLR. In the case at bar, the wife has commenced a separate action and she is entitled to pursue her requested relief within said action, without full consolidation.

. [*4]

Based on the foregoing, it is hereby

ORDERED, that the husband's motion to consolidate Action #1 and Action #2, pursuant to CPLR §602(a) is granted to the extent that a joint trial and joint discovery is directed before the same judge, of the issues presented in each parties complaint , with the trial of the wife's action to immediately follow the trial of the husband's action; and it is further

ORDERED, that the caption shall henceforth read as follows:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -Trial/IAS Part 10A.C. ,Index No. 10-202115

Plaintiff

againstAction #1

D.R. a/k/a D.C.

Defendant

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

D.R.C.,

PlaintiffIndex No. 10-203033

Action #2

against

A.C.

Defendant



and it is further

ORDERED, that this matter is bifurcated and a grounds trial in both actions shall be held before the undersigned on April 19, 2011 at 9:30 a.m. A pre-trial conference shall be held onMarch 30, 2011 at 2:00 p.m.., at which time the parties and counsel should be prepared to discuss settlement.

This constitutes the decision and order of the Court. All further requested relief not specifically granted is denied.

E N T E R:

_________________________

Mineola, NYAnthony J. Falanga, Justice

Dated: January 18, 2011Supreme Court, Nassau County