This action was commenced by plaintiff-wife on January 16, 2002 seeking a divorce on the grounds of cruel and inhuman treatment. On March 8, 2002, defendant-husband served an answer to the complaint which denied the material allegations. That answer did not assert any counterclaims for divorce against the wife. On December 18, 2003, the parties entered into a written settlement agreement which was subscribed by the parties and acknowledged in the form required. That agreement set forth the parties' respective rights and obligations concerning distribution of their marital property, maintenance, child support, custody and parenting time. For over three years, the parties complied with the provisions of the agreement. After the agreement was signed, the husband made numerous unsuccessful attempts to have the wife complete the "uncontested divorce" paperwork to enable the couple to obtain a divorce on the terms set forth in the agreement.

In this motion, the husband moves to amend his answer to assert a counterclaim for a conversion divorce on the grounds that the parties have lived separate and apart pursuant to the terms of the settlement agreement for more than one year. See Domestic Relations Law § 170[6]. "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 . . . ." C.P.L.R. § 3025[b]. Such "[l]eave shall be freely given upon terms as may be just . . . ." C.P.L.R. § 3025[b]. Unless the proposed amendment unduly prejudices or surprises the adverse party, courts generally exercise their discretion in favor of permitting the amendment. See, e.g., Lechtrecker v. Lechtrecker, 176 AD2d 284 (2d Dept. 1991)(allowing the plaintiff's amendment in light of the defendant's failure to show that she was prejudiced or otherwise surprised); Vickers v. Vickers, 131 AD2d 565 (2d Dept. 1987)(permitting amendment of divorce complaint in the absence of a showing of surprise or prejudice); Getz v. Getz, 130 AD2d 710 (2d Dept. 1987)(husband's supplemental complaint alleging additional instances of cruel and inhuman treatment should have been allowed in light of wife's failure to show undue prejudice).

Applying these principles, the Court grants the husband's motion for leave to amend his answer. There is no merit to the wife's claim that New York has a bright-line rule prohibiting amendments of divorce pleadings to include grounds that did not exist at the commencement of the action. In Golub v. Ganz, 22 AD3d 919 (3d Dept. 2005), the Court granted the plaintiff a divorce [*2]based upon an amended complaint which included acts of adultery committed after the action was commenced. The Court held that "[s]ince no provision of the Domestic Relations Law precludes [the] plaintiff from obtaining a divorce upon acts of adultery that occur after an action is commenced and because no prejudice has been demonstrated . . . with respect to this amendment to the complaint, we are satisfied that a divorce could be granted on this ground." 22 AD3d at 921, citing Shuffman v. Shuffman, 6 AD2d 1030 (1958) and Otto v. Otto, 220 A.D. 130 (1927). This Court is bound by the Third Department case law which holds that in the absence of demonstrated prejudice, there is no absolute bar to amending pleadings in divorce actions to include grounds that occur after commencement of the action.

The wife has not convinced the Court, under the particular circumstances here, that she would be unduly prejudiced by the addition of the conversion divorce counterclaim. In order to establish prejudice, the wife must show some special right lost, some change of position or some significant trouble or expense. See Acevedo v. Holton, 239 AD2d 194 (1st Dept. 1997). First, the wife claims that she would suffer prejudice because she would lose the right to argue, in a new divorce action commenced by her or her husband, that the settlement agreement would not apply to such new action. However, the wife still can challenge the agreement in this action and thus she is not foreclosed from seeking to undo something she contends was fraudulently made. Whether the wife could frame her legal challenge to the agreement differently in an action that has not even been commenced is entirely speculative and in any event cannot constitute undue prejudice so as to deny the proposed amendment.

The wife also argues that she would be prejudiced because she would forced to engage in protracted pre-trial discovery and litigation in seeking rescission of the settlement agreement in this action. However, the fact that the wife may incur future litigation costs in attempting to strike down the settlement agreement does not suffice to establish undue prejudice. Nor has the wife adequately explained why she would not have such litigation expenses in a new action since the husband maintains that the agreement survives even if this divorce action is discontinued. Finally, this motion is being made well in advance of trial, at a time when the wife has ample time to challenge the agreement. In the absence of a showing of prejudice, the Court grants the husband's motion to amend his answer to assert a counterclaim for a conversion divorce.

Hallingby v. Hallingby, 159 Misc 2d 988 (Sup. Ct. NY Cty. 1993), upon which the wife relies, is distinguishable. In that case, the Court denied the plaintiff's motion for leave to amend his complaint to add post-commencement allegations of cruel and inhuman treatment. The Court noted that under the Equitable Distribution Law, the date the action was commenced serves both as a date for closing the marital holdings and also as a potential valuation date for the marital assets. The Court concluded: "Were this court to allow plaintiff to serve a supplemental complaint and were plaintiff to meet his burden of proof for those additional allegations but not those allegations contained in his earlier complaint, the plaintiff would benefit [from] having a date for both the closing of the marital holdings and for the valuation of assets which preceded the acts which constituted the grounds for divorce." The Hallingby court concluded that such a result would run contrary to the Equitable Distribution Law "which clearly relies on the commencement date of the action as a trigger for future court determinations."

Thus, the Hallingby court denied the amendment because it would have unduly prejudiced the defendant by allowing the plaintiff to benefit from an earlier commencement date than he would [*3]have otherwise been entitled to. Here, the wife does not argue that she would be prejudiced in this manner. Furthermore, no such prejudice exists because the proposed amendment here involves addition of a cause of action for a conversion divorce. If the husband obtains a divorce on this ground, the date of commencement would be irrelevant because the distribution of marital property would be governed not by the Equitable Distribution Law, but rather, by the settlement agreement itself. On the other hand, if the wife prevails on her claim that the agreement is void, then no conversion divorce will be granted in this action. The wife could then pursue her own cause of action for divorce and the original commencement date, chosen by her, remains as the potential valuation date for the marital assets in this case. Thus, because the proposed amendment here involves only the addition of a cause of action for a conversion divorce, the type of prejudice identified in Hallingby is not present. Accordingly, it is

ORDERED that defendant's motion to amend his answer is granted and the amended answer attached to the motion papers is deemed served and filed; and it is further

ORDERED that the parties are directed to appear for a conference in Part 24 on May 3, 2007 at 9:30 a.m.

This constitutes the decision and order of the Court

April 23, 2007

Justice Rosalyn Richter