Supreme Court, Kings County, April 5, 2022

John A. Gemelli, Forest Hills, for defendant.

Yonatan Levoritz, New York City, for plaintiff.

Vladimir Cadet,^[FN1] Jamaica, Attorney for the Child.

The court is called upon to consider whether plaintiff can discontinue his action pursuant to CPLR 3217 (a) and file a new action—three minutes later—in another venue even where the court in the first action decided a fully briefed pendente lite application and issued a written decision and order including awarding interim support and other orders.

The parties were married on January 19, 2007. Plaintiff husband commenced this action in Queens County, New York, on July 28, 2020, by filing a summons with notice. There is one child of the marriage, who is three years old. The marital residence was in Whitestone, New York.

In August 2020, defendant filed an order to show cause seeking pendente lite relief. Both parties are represented by privately retained counsel. Counsel for defendant filed a demand for complaint in September 2020. Plaintiff filed a verified complaint in November 2020 (NY St Cts Elec Filing [NYSCEF] Doc No. 20). On November 16, 2020, a court conference was held on the pending motion. On November 30, 2020, the Queens County Supreme Court appointed a parenting coordinator to conduct therapeutic visits (NYSCEF Doc No. 22). In December 2020, plaintiff filed a notice of cross motion and opposition to defendant's order to show cause (NYSCEF Doc No. 23). On December 9, 2020, the Queens County Supreme Court issued an order appointing an attorney for the child (NYSCEF Doc No. 37).

On May 27, 2021, the assigned justice in Queens County issued a written decision and order deciding defendant's order to show cause and plaintiff's notice of cross motion which{**75 Misc 3d at 508} included, inter alia, temporary child support, payment of carrying charges, exclusive use and occupancy of the marital residence, and maintenance. The issue of parenting time was scheduled for June 7, 2021.

On June 8, 2021, the assigned justice in Queens County issued a further short form order related to finances, discovery and custody. On June 21, 2021, at 4:55 p.m., plaintiff filed a substitution of counsel having retained Yonatan S. Levoritz, Esq., as incoming counsel. On June 22, 2021, at 3:12 p.m., Mr. Levoritz filed a notice of discontinuance. Three minutes later, at 3:15 p.m., plaintiff commenced a new, separate divorce action in Richmond County.

On July 20, 2021, defendant's counsel filed an emergency order to show cause seeking, inter alia, to vacate the notice of voluntary discontinuance and restoring the case to the court's calendar. On July 22, 2021, the parties, through counsel, entered into a consent briefing schedule.

On September 8, 2021, the assigned justice in Queens County issued a recusal order. On September 27, 2021, defendant filed a substitution of counsel.

On December 15, 2021, this matter was administratively transferred to the Honorable Jeffrey S. Sunshine in Kings County Supreme Court. On December 21, 2021, this court issued a conference scheduling order for virtual oral argument on the issue of the voluntary discontinuance for January 31, 2022 (NYSCEF Doc No. 134). The matter was adjourned to February 10, 2022, for submission of minutes; however, the minutes of the oral argument were not submitted to the court until March 9, 2022. At that time, the matter was marked submitted.

The Arguments

Defendant contends that, in effect, plaintiff was unhappy with the way the litigation was proceeding and the pendente lite obligations he was ordered to pay and he is attempting to forum shop by discontinuing the action and commencing it in another venue all while taking the position that he is under no obligation to pay his court-ordered retroactive obligations pursuant to the pendente lite order in the Queens County matter. Defendant contends that plaintiff should not, in effect, be permitted to avoid his pendente lite obligations after engaging in extensive litigation before the court in Queens County. She argues that it would result in significant prejudice to her if{**75 Misc 3d at 509} plaintiff is permitted to relitigate the pendente lite issues before another court because he does not like the results in the first venue he chose. [*3]She contends that she has spent significant legal fees to litigate this action which plaintiff commenced and argues that plaintiff is more than $30,000 in arrears of the pendente lite orders and that she should not have to incur additional counsel fees to relitigate those same issues in another venue. Defendant avers that her former attorney was ill and that is why there was no responsive pleading; however, defendant did file and reply to her own pendente lite application.

Plaintiff contends that while two motions were litigated and decided in the Queens action really the matter was litigated for only a short period of time. He argues that he lives in Richmond County and since defendant never filed an answer he has a right to discontinue the Queens County action and recommence an action in Richmond County where he lives.^[FN2] Plaintiff does not dispute defendant's allegation that he is not in compliance with the pendente lite orders. Instead, he argues that defendant is also in noncompliance and that, in effect, she has "unclean hands" and her application should be denied.

Defendant contends that plaintiff already lived in Richmond County when he commenced the action in Queens County. She contends that she is experiencing significant financial distress as a result of plaintiff's alleged noncompliance with the pendente lite order and that "starting over" before another jurist in another court would be prejudicial and expensive.

Plaintiff contends that he moved out of Queens County on or about August 1, 2020, and that he was a Queens County resident as of July 28, 2020, when he commenced the divorce action there. Plaintiff's counsel argues that "Defendant-Mother should not be awarded any retroactive child support, since this action has been discontinued, it is a nullity, and there is no basis for the Court to grant her additional relief in an action that has been discontinued."

CPLR 3217 (a) (1), which governs voluntary discontinuance, states, as relevant here, as follows: "Without an order. Any party asserting a claim may discontinue it without an order 1. by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served."

{**75 Misc 3d at 510}It is well-established that a litigant has a statutory right pursuant to CPLR 3217 (a) to discontinue an action prior to a responsive pleading being filed (see Battaglia v Battaglia, 59 NY2d 778 [1983]; see also Broder v Broder, 59 NY2d 858 [1983]; Tutt v Tutt, 61 AD3d 967 [2d Dept 2009]). In Battaglia, the Court of Appeals reversed the Appellate Division, Third Department for the reasons detailed in the dissent. In that dissent, Justice Levine wrote that "under the clearly expressed language of CPLR 3217 (subd [a], par 1), plaintiff had the absolute and unconditional right to discontinue her action without seeking judicial permission through a court order, merely through the service of the notice upon defendant" where no complaint or answer had been served (90 AD2d 930, 933 [3d Dept 1982, Levine, J., dissenting], revd on dissenting mem of Levine, J. 59 NY2d 778 [1983]).^[FN3]

In Giambrone v Giambrone, the Appellate Division, First Department held that the statutory right in CPLR 3217 (a) (1) was absolute absent "deviousness, trickery or fundamentally unfair conduct such as could justify depriving plaintiff of a procedural remedy to which he is statutorily entitled" (140 AD2d 206, 209 [1st Dept 1988] [emphasis [*4]added]; see also McMahon v McMahon, 279 AD2d 346 [1st Dept 2001]; see generally Newman v Newman, 245 AD2d 353 [2d Dept 1997]). This statutory right is so protected that for a party to waive that right the court must find that the waiver was a "voluntary and knowing relinquishment" (Tutt v Tutt, 61 AD3d 967, 968 [2d Dept 2009]).

Here, defendant contends, in effect, that despite her failure to file a responsive pleading she will be prejudiced if plaintiff's right to discontinue is preserved because she has incurred counsel fees in the first action and will she contends, in effect, incur duplicative counsel fees to "start over" in the new divorce action plaintiff commenced.

The court does not find that the facts and circumstances presented here rise to the level of "deviousness, trickery or fundamentally unfair conduct" that may warrant depriving {**75 Misc 3d at 511}plaintiff of his statutory right under CPLR 3217 (a) (1). The court notes that this situation is a direct result of defendant's failure to file a responsive pleading. The court does not credit defendant's conclusory assertion, with no proof attached, that she was unable to file a responsive pleading because her attorney was unwell; however, the court notes that defendant does not reconcile this discrepancy with the fact that she did file, brief and litigate an omnibus pendente lite application but failed to file a responsive pleading.

Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.16 (f), a preliminary conference should be held within 45 days of commencement. In the uniform preliminary conference order the parties are required to provide a date when a responsive pleading "(was) (or will be) served" (see § 202.16 [f] [2]) and, if not, the uniform form specifically provides that "[i]f the issue of grounds is resolved, the parties agree that Plaintiff/Defendant will proceed on an uncontested basis to obtain a divorce on the grounds of DRL § 170(7) and the parties waive the right to serve a Notice to Discontinue pursuant to CPLR 3217(a) unless on consent of the parties" (§ 202.16 [f] [2] [v]; Appendix G).

The facts presented herein demonstrate the importance of preliminary conferences being held in a timely manner and for preliminary conference orders to be completed and complied with. Here, defendant failed to file an answer (CPLR 3018). The court notes that the reliance on Greisman v Greisman (14 Misc 3d 409 [Sup Ct, Kings County 2006]) is misplaced: in that case this court found that the defendant filed an affidavit waiving the right to answer and that "[c]learly, defendant's affidavit was predicated on the now-vacated agreement and she must be permitted to withdraw same and file an answer. Given the fact that the agreement upon which defendant's waiver was predicated was 'permeated by overreaching, unfairness and unconscionability,' so too was the waiver by defendant" (id. at 414).

Here, the court does not find that plaintiff engaged in "deviousness, trickery or fundamentally unfair conduct." The court notes that the notice of discontinuance was only filed after plaintiff retained new counsel.

Responsive Pleadings and Domestic Relations Law § 170 (7)

The court notes that since 2010 many, if not most, plaintiffs seeking a divorce have been able to utilize Domestic Relations Law § 170 (7) which provides grounds for divorce where the relationship{**75 Misc 3d at 512} has "broken down irretrievably for a period of at least six months, provided that one party has so stated under oath" (emphasis added). It is well-established that there is no defense to a cause of action for divorce predicated on Domestic Relations Law § 170 (7) (see Ambrose v Ambrose, 150 AD3d 1060 [2d Dept 2017]; see also Hoffer-Adou v Adou, 121 AD3d 618 [1st Dept 2014]; Johnston v Johnston, 156 AD3d 1181 [3d Dept 2017]; Trbovich v Trbovich, 122 AD3d 1381 [4th Dept 2014]). As such, the failure to file a responsive pleading may, to some, appear to be no longer procedurally important; however, the situation presented by the case at bar highlights the continued need for diligent compliance. Any change to this right to file a unilateral discontinuance when there has not been a responsive pleading in a matrimonial proceeding rests with the legislature, not with the court absent a finding of "deviousness, trickery or fundamentally unfair conduct" where the uniform form preliminary conference order has not been entered.

The court notes that with the proceeding filed in Richmond County this proceeding can proceed [*5]in a venue in which at least one of the parties resides inasmuch as neither party lives in Kings County (see generally Fisch v Davidson, 204 AD3d 104 [2d Dept 2022]).

Counsel Fees Incurred Prior to Commencement of Richmond County Action

There are remedies—other than vacating plaintiff's notice of discontinuance—available to defendant to address alleged issues of unnecessarily incurred counsel fees. This court does not reach the issue of whether defendant is entitled to counsel fees inasmuch as this matter is discontinued nor does the court rule on the issue of whether plaintiff's conduct should be considered in a future counsel fee application or whether it may be considered by the court in the venue where plaintiff commenced the second litigation (see generally O'Shea v O'Shea, 93 NY2d 187 [1999] [the court in its discretion may award counsel fees incurred prior to commencement of a matrimonial action]).

Pendente Lite Arrears and Enforcement Counsel Fees

While this court does not reach a finding that plaintiff voluntarily discontinued this action purposefully to avoid his court-ordered pendente lite financial obligations pursuant to the Queens County Supreme Court's written decision and order, this court notes that where there are, as alleged here, pendente{**75 Misc 3d at 513} lite support arrears those arrears may be subject to a money judgment pursuant to Domestic Relations Law § 244 (see Fotiadis v Fotiadis, 18 AD3d 699, 701 [2d Dept 2005]; see generally Dyandria M. v Gerard M., 278 AD2d 37 [1st Dept 2000] [holding petitioner was entitled to enforce pendente lite support order notwithstanding termination of prior matrimonial action]; Clemente v Clemente, 50 AD3d 514 [1st Dept 2008]; Matter of Fixman v Fixman, 31 AD3d 637 [2d Dept 2006] [holding arrears under pendente lite order could be enforced by seeking leave to enter a money judgment even where matrimonial action had been dismissed]; see also generally Curran v Curran, 192 AD3d 985 [2d Dept 2021] [holding that even after entry of a judgment of divorce, a pendente lite order may be enforced through entry of a money judgment]). Consistent in this extensive and long-standing line of case law is the principle that a party should not be permitted to circumvent his or her pendente lite arrears by filing a voluntary discontinuance. To permit such an outcome would cause prejudice to the recipient of the pendente lite support. Here, if the plaintiff was permitted to voluntarily discontinue this action without complying with the alleged pendente lite support arrears it would, if true, prejudice the child's right to support.

Contempt

Given this court's determination herein that, under the facts and circumstances presented, plaintiff can voluntarily discontinue this action pursuant to CPLR 3217 (a), the court must find that those branches of defendant's emergency application seeking to hold plaintiff in contempt for alleged failure to comply with the pendente lite order issued by the Queens County Supreme Court prior to the case being transferred to this court must be denied. It is well-established in the New York case law that contempt is not an available remedy for failure to comply with pendente lite orders once a matrimonial action has ended (see Fotiadis v Fotiadis, 18 AD3d at 701; see also Spencer v Spencer, 159 AD3d 174 [2d Dept 2018] [holding that enforcement through contempt is available until entry of a judgment of divorce]; Patricia Lynn N. v Vincent Michael N., 152 AD2d 547 [2d Dept 1989]).

Inasmuch as this matrimonial action is discontinued as detailed hereinabove, the relief requested in defendant's emergency application seeking, inter alia, enforcement of pendente lite arrears by contempt and counsel fees for enforcement is denied without prejudice to move for a money judgment and{**75 Misc 3d at 514} counsel fees by plenary action or to seek same, if appropriate, in the matrimonial action that plaintiff commenced in Richmond County.

This action is deemed discontinued pursuant to CPLR 3217 (a).