Summary
In Newman v Newman, 245 AD2d 353, 354 (1997), the court held that "[w]hen an action is discontinued, it is as if it had never been; everything done in the action is annulled and all prior orders in the case are nullified."
Summary of this case from U.S. Bank Tr. v. WellbrockOpinion
December 8, 1997
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
Ordered that the order is reversed, on the law, with costs, the defendant wife's motion is denied, and the purported counterclaim is dismissed.
The plaintiff commenced this action by summons with notice in July 1995 seeking a divorce on the grounds of abandonment, constructive abandonment, and cruel and inhuman treatment. The defendant submitted a notice of appearance and demand for complaint. However, a complaint was never served or filed. On December 6, 1995, by order to show cause, the defendant moved for child support and other pendente lite relief. Simultaneously, the defendant served a paper denominated a counterclaim for divorce based upon abandonment. The purported counterclaim was not interposed within an answer. In May 1996 the Supreme Court awarded the defendant pendente lite child support to be paid monthly. Thereafter, on August 27, 1996, the plaintiff served the defendant with a notice of discontinuance. On September 6, 1996, the defendant moved, inter alia, for a "determin[ation] that the plaintiff's notice of Voluntary Discontinuance did not terminate the action". The Supreme Court determined that the plaintiff's voluntary discontinuance did not terminate the entire action, which could proceed on the defendant's counterclaim. We disagree.
CPLR 3217 (a) (1) grants to a party asserting a claim the statutory right to discontinue that claim, without the need of a judicial order, simply by serving notice of discontinuance prior to the service of a responsive pleading or within 20 days after service of the pleading asserting the claim, whichever is earlier, and filing proof of service (see, Battaglia v. Battaglia, 59 N.Y.2d 778, revg on dissenting mem below 90 A.D.2d 930).
As in Battaglia (supra, at 933), neither a complaint nor a responsive pleading was ever served in this action, thereby giving to the plaintiff herein the "absolute and unconditional right to discontinue [his] action without seeking permission through a court order, merely through the service of the notice upon defendant" (see, Giambrone v. Giambrone, 140 A.D.2d 206). When an action is discontinued, it is as if it had never been; everything done in the action is annulled and all prior orders in the case are nullified (Brown v. Cleveland Trust Co., 233 N.Y. 399; Weldotron Corp. v. Arbee Scales, 161 A.D.2d 708; Miehle Print. Press Mfg. Co. v. Amtorg Trading Corp., 278 App. Div. 682).
Furthermore, since there is no provision in the CPLR for the service of a counterclaim where a summons is served without a complaint and a subsequent complaint is never filed (see generally, CPLR 3011, 3012; Siegel, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C3012:19, 3012, at 655-667), and since a counterclaim may only be interposed through service of an answer (see, White v. National Bondholders Corp., 191 Misc. 536, affd 273 App. Div. 963; see generally, Siegel, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C3011:3, at 626-627, 630-631), the purported counterclaim asserted by the defendant is a nullity. The defendant still has the same rights that she had before the plaintiff's action was commenced, including, among others, the right to commence her own matrimonial action asserting those claims set forth in the purported counterclaim (see, Chandler v. Chandler, 108 A.D.2d 1035).
Thompson, J. P., Pizzuto, Joy and Florio, JJ., concur.