Marcilio v Hennessy

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[*1] Marcilio v Hennessy 2015 NY Slip Op 50285(U) Decided on March 6, 2015 Supreme Court, New York County Cooper, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2015
Supreme Court, New York County

Nicholas Marcilio, Plaintiff,


Marlene Hennessy, Defendant.


Nicholas Marcilio, pro se

For the Defendant

Kira J. Schettino, Esq.

Law Office of Robert Santoriella, P.C.

335 Adams Street, Suite 2720

Brooklyn, NY 11201
Matthew F. Cooper, J.

In this action for divorce, the defendant-wife moves to vacate the notice of discontinuance filed by the plaintiff-husband on December 4, 2014. Plaintiff, who is representing himself in the matter, did not submit written opposition to this motion, but appeared on January 8, 2015 to orally contest the relief sought.

The issue before the court is whether a plaintiff, who served a complaint for divorce upon a defendant and actively participated in the litigation for over two years, may voluntarily discontinue the action without leave of court solely because the defendant failed to interpose an answer. Based primarily on issues of timeliness, prejudice, and estoppel, the notice of discontinuance filed by plaintiff is deemed void and a nullity.

CPLR 3217(a)(1), amended in 2011 and effective January 1, 2012, provides that:

Any 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, if no responsive pleading is required, within twenty days after service of the pleading asserting the claim and filing the notice with proof of service with the clerk of the court.

Prior to the 2011 amendment, CPLR 3217(a)(1) contained more rigid restrictions on the timeliness of the service and filing of the notice of the discontinuance. As amended, the spirit of the statute remains the same, however, with the current version designed to provide "sufficient flexibility in the early stages of cases for parties to settle claims" (see 7-3217 New York Civil [*2]Practice: CPLR P 3217.02, David L. Ferstendig, General Editor).

Generally, settling claims in a divorce action includes stipulating to grounds, resolving custody and creating a parenting schedule, dividing marital property and determining spousal and child support. Despite resolving these issues, however, divorcing parties still require court intervention to obtain a judgment of divorce. Thus, matrimonial actions are unique in the sense that, unless the parties decide to reconcile, discontinuance is often counterproductive and can be used to frustrate the ultimate goal. Nevertheless, providing flexibility for parties to settle claims has long been a goal in divorces, an area of law where raw emotion can often overwhelm reason.In the days before no-fault divorce, practitioners refrained from serving complaints so as not to detail the grounds for divorce. The fear was that allegations of fault — be it cruelty, adultery or abandonment — would inflame passions and impede settlement. Consequently, it became accepted practice for cases to proceed on the summons alone, with the complaint being filed only after the matter had been settled or just prior to trial. Even after the enactment of no-fault divorce, which has resulted in nearly every case being brought on the decidedly neutral ground of "irretrievable breakdown of the marriage," the tradition of dispensing with the timely serving of pleadings has continued. That is, plaintiffs regularly fail to serve complaints, and when they do, defendants often fail to interpose answers. Importantly however, these procedural failures are often not an indication that the parties wish to reconcile. Instead, they are tactical efforts to amicably progress toward divorce.

In consideration of the unique posture of matrimonial actions, courts have distinctly shaped when it is and is not appropriate to discontinue without leave of a court. As case law makes clear, and in spite of the common practices of the matrimonial bar, a major factual distinction that affects whether an action may be discontinued without leave of a court is whether a complaint was actually served. In the majority of cases without a complaint, courts have been inclined not to deprive a plaintiff of the right to discontinue under CPLR 3217(a)(1). For example, in McMahon v McMahon, (279 AD2d 346 [1st Dept 2001]), a case cited by plaintiff in a one-page memorandum of law attached to his notice of discontinuance, the First Department, in affirming the trial court, opined that the "dispositive factor" was that the complaint was never served, preserving plaintiff's "absolute and unconditional statutory right" to discontinue the action on notice. In rejecting defendant's estoppel argument of "fundamental unfairness," the court held plaintiff was authorized to discontinue the action despite the fact that the action had substantially progressed through discovery and that the result of the procedural tactic would change the date of commencement of the action to plaintiff's benefit (see also Giambrone v Giambrone, 140 AD2d 206 [1st Dept 1988][discontinuance permitted where result would impose economic hardship to defendant]; Newman v Newman, 245 AD2d 353 [2d Dept 1997][discontinuance allowed months after a pendente lite order for child support was issued, thereby nullifying it]; Ressa v Ressa, 2007 NY Misc. LEXIS 8554 [Sup Ct, NY County 2007][discontinuance authorized after both parties entered into a preliminary conference order and defendant filed a pendente lite motion for counsel fees]; Wang v Fazio, 33 Misc 3d 1228[A][Sup Ct, Nassau County 2011][discontinuance permitted after motion practice, completion of discovery, and case deemed trial ready]).

Less frequently, courts have thoughtfully recognized circumstances appropriate to find that a plaintiff who failed to file a complaint had voluntarily and knowingly waived the right to [*3]discontinue under CPLR 3217(a)(1). For instance, in Minkow v Metelka, (46 AD3d 864 [2d Dept 2007]), the Second Department held that even absent a complaint, the "absolute and unconditional" right to discontinue the action under CPLR 3217(a)(1) was waived when plaintiff willingly participated in a preliminary conference, an inquest on grounds, and an ongoing equitable distribution trial wherein she declined to object to the absence of pleadings after given the opportunity to do so (accord Tutt v Tutt, 61 AD3d 967 [2d Dept 2009][the parties agreed in the preliminary conference order that plaintiff was to serve a complaint by a date certain, and expressly acknowledged that the time to serve a notice of discontinuance under CPLR 3217(a)(1) would run from that date, the subsequent untimely notice of discontinuance was deemed a nullity by express waiver]).

More relevant to the facts here, however, is case law involving situations where a plaintiff served a complaint, the defendant did not interpose an answer, and the parties litigated for a significant duration before the plaintiff filed a notice of discontinuance. For example, in Hinds v Hinds, (25 Misc 3d 1213[A][Sup Ct, Kings County 2009]), the court vacated a notice of discontinuance that plaintiff served two years after he had served defendant with a complaint. Finding that the discontinuance was untimely and prejudicial to the defendant and the parties' children, the court noted that discovery, which included a full custodial forensic evaluation, was complete, and that further delay in resolving the remaining divorce issues would not be in the children's best interests (see also Greisman v Greisman, 14 Misc 3d 409 [Sup Ct, Kings County 2006][defendant's affidavit waiving the right to answer in uncontested divorce packet held to be the equivalent of a responsive pleading; plaintiff estopped from discontinuing action after extensive litigation]).

There is a question in the first place as to whether a responsive pleading is required in a matrimonial action (see S.H.M. v S.M., 40 Misc 3d 1220[A][Sup Ct, Westchester County 2013]["If a Defendant is served with a complaint, appears pro se or by counsel, and concedes the grounds for divorce as alleged are present, serving an answer may well prove an unnecessary and redundant exercise"]).[FN1] But even assuming that there is such a requirement, facts are present in this case that compel the court to void and nullify plaintiff's notice of discontinuance.

Plaintiff commenced this action by filing a summons and complaint on November 13, 2012. Defendant responded to the complaint by filing an Order to Show Cause for pendente lite relief six days later on November 19, 2012. A preliminary conference was held on December 12, 2012, where both parties appeared with counsel and entered into a preliminary conference order stipulating, among other things, that plaintiff "would obtain the divorce on the grounds of DRL 170(7) irretrievable breakdown of the marital relationship." Additionally on that date, the parties [*4]entered into a separate "so-ordered" stipulation regarding living arrangements and access time with the parties' two minor children. Plaintiff thereafter discharged his attorney and was permitted to proceed in a self-represented capacity.

Subsequently, because custody was in dispute, the court appointed an attorney for the children and a forensic psychologist. Additionally, in an effort to equitably divide marital property, the court appointed appraisers to value certain of plaintiff's personal property and the defendant's pension. Both parties actively participated in the litigation, including substantial discovery and motion practice, and a full custodial evaluation by the forensic psychologist. Notably, because plaintiff refused to pay his share of the forensic psychologist's fees from post-commencement funds, defendant was directed to pay the psychologist with marital funds as an advance against plaintiff's share of equitable distribution. The custody dispute required the court to commence a trial that was ultimately resolved by the parties entering a final so-ordered parenting agreement, an agreement that plaintiff later unsuccessfully sought to vacate. The parenting agreement includes a clause that the court hold the passports of the parties' children, which the court continues to hold, and allows the parties to retrieve them for specified international travel with the children. With the remaining financial issues of child support and equitable distribution on the horizon, plaintiff, on December 4, 2014, filed a notice of discontinuance without leave of court pursuant to CPLR 3217(a)(1). This motion followed.

The facts of this case clearly warrant the application of equitable estoppel. The history of this litigation unfortunately demonstrates that plaintiff has sought to harass the defendant by requiring her to pay private counsel, while, as a pro se litigant, he has repeatedly brought meritless motions and has taken unreasonable positions. In short, he has intentionally frustrated the progress of the case in every way possible, with the instant procedural ploy merely another example of plaintiff's misadvised actions, and it will not be tolerated (see e.g. Giambrone, 140 AD2d 206 [1st Dept 1988][recognizing that a court possesses equitable powers in the presence of deviousness, trickery, or fundamentally unfair conduct].

Additionally, to allow plaintiff to discontinue the action at this late stage would severely prejudice defendant and the parties' children by prolonging a painful and inevitable divorce process and requiring defendant to incur further expert and counsel fees (not to mention wasting valuable court time and resources). Furthermore, if the case is allowed to be discontinued, defendant will be forced to commence a new action in order to reach the ultimate and unavoidable result, the parties' divorce. That outcome would clearly contravene the legislative intent behind CPLR 3217(a)(1), "to provide sufficient flexibility in the early stages of cases for parties to settle claims." Therefore, the court must conclude that the purported discontinuance is improper and untimely.

Despite plaintiff not being able to discontinue in this instance, the case should stand as a warning to defendants of the perils of being remiss when it comes to pleadings, whatever the reason. Defendant was unquestionably burdened with having to take the time and expense to file this motion, and was made to face the anxiety of the case coming to an abrupt and incomplete end notwithstanding all the litigation that has ensued thus far. Such burdens should not be endured in this matrimonial action or any other.

In light of the foregoing, it is

ORDERED, that defendant's motion to nullify plaintiff's notice of discontinuance pursuant to CPLR 3217(a)(1) is granted; and it is further

ORDERED, that the parties are to appear on May 13, 2015 at 9:15 AM to resolve the remaining financial issues before the granting of the divorce.

This constitutes the decision and order of the court.

Dated: March 6, 2015Enter: ___________________________

Matthew F. Cooper, J.S.C. Footnotes

Footnote 1:It is important to mention that the First Department held in BDO USA, LLP v Phoenix Four, Inc., (113 AD3d 507 [1st Dept 2014]), that a motion to dismiss is considered a responsive pleading for purposes of CPLR 3217(a)(1) to prevent a plaintiff from freely discontinuing an action solely to avoid a potentially adverse decision. In that same practical and equitable spirit, it is the view of this court that pendente lite motions in matrimonial actions, especially those that directly oppose allegations in the complaint, like defendant's pendente lite motion for exclusive occupancy here for example, should be considered a responsive pleading for purposes of CPLR 3217(a)(1).