Opinion
200936/10
11-21-2011
Janice Wang, Plaintiff, v. Frank Fazio, Defendant.
Attorney for Plaintiff Scupp & Berman, LLP Attorney for Defendant Bryan L. Salamone, PC
Attorney for Plaintiff Scupp & Berman, LLP
Attorney for Defendant Bryan L. Salamone, PC
Daniel Palmieri, J.
The following papers have been read on this motion:
Order to Show Cause, dated 5-17-11.......................................1
Cross Order to Show Cause, dated 7-12-11............................2
Affirmation in Opposition, dated 7-27-11...............................3
Reply Affirmation, dated 8-8-11..............................................4
This motion by the defendant to vacate a Discontinuance of Action dated April 28, 2011 served and filed by the plaintiff, to issue an order enjoining plaintiff from discontinuing the action and for sanctions and attorney's fees pursuant to Part 130-1 of the Uniform Rules for the Trial Courts, is determined as set forth in this order.The cross motion by the plaintiff for sanctions and attorney's fees is determined as set forth in this order. All requests for relief not specifically addressed are denied.
This action was commenced by a filing of a summons with notice on April 1, 2010. On April 7, 2010 the defendant, by his attorney, served a notice of appearance and demand for a complaint. The parties and counsel appeared before the Court (Brown, J.) on June 21, 2010 and entered into a Preliminary Conference Order, which was signed by counsel. Contained in the order was a stipulation regarding pendente lite relief, upon which it was noted that no motions were pending. This was signed by both parties and counsel. Also signed by both parties was a statement acknowledging the effect a judgment of divorce would have on health coverage.
The defendant then moved for pendente lite relief by way of order to show cause in September, 2010 and an order was made on that motion dated December 2, 2010. The Court recited in its order that no opposition was received notwithstanding proper service of the order to show cause. It also noted that the plaintiff had not provided a net worth statement, although ordered to do so in the Preliminary Conference Order. Counsel then appeared for a compliance conference and an order was issued on October 8, 2010. New discovery deadlines were established, and by notices dated October 14, 2010 the plaintiff demanded a deposition of defendant, discovery and inspection, and production of documents. These demands were rejected by counsel for defendant for reasons stated in a letter dated October 20, 2010.
Counsel again appeared for a conference and on December 16, 2010 the Court (Brown, J.) issued an order certifying the case as ready for trial, and assigning a trial date of March 16, 2011. The matter was then reassigned to this Court.
By order to show cause dated March 10, 2011 the plaintiff moved for an order vacating Justice Brown's certification order. The return date of that motion was adjourned on consent until April 29, 2011 but was then withdrawn upon the filing of the notice of discontinuance. This motion and cross motion ensued.
CPLR 3217(a)(1) permits any party asserting a claim to discontinue it without a court order by serving upon all parties a notice of discontinuance "at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier, and filing the notice with proof of service with the clerk of the court." As set forth above, no complaint was ever served, and thus there was no responsive pleading. The defendant argues that notwithstanding these circumstances the notice of discontinuance should be stricken because the plaintiff either waived her right to do so by her actions in the case prior to service of the notice, or should be barred from doing so under estoppel principles. He also claims that her motivation is simply to start over, because the present litigation is not going well for her. The plaintiff denies any dark motives and simply stands on her statutory right. Both argue that appellate case law favors their respective positions. The Court notes that as the plaintiff has not requested court permission to discontinue pursuant to CPLR 3217(b) as an alternative form of relief, this will not be addressed.
Where no pleadings have been served, the plaintiff has the "absolute and unconditional right" to discontinue the action without seeking judicial permission by serving the notice upon the defendant. Tutt v Tutt, 61 AD3d 967 (2d Dept. 2009), citing Battaglia v Battaglia, 59 NY2d 778 (1988), revg on dissenting mem 90 AD2d 930 (2d Dept. 1982); Newman v Newman, 245 AD2d 353 (2d Dept. 1997). However, the right may be waived if there is a voluntary and knowing relinquishment of such right, which may arise by express agreement or by conduct, either by actions or by a failure to claim the advantage given by the right. Tutt, supra, citing Golfo v Kycia Assoc., Inc., 45 AD3d 531(2d Dept. 2007). However, a waiver cannot be "created by negligence, oversight or thoughtlessness, and cannot be inferred from mere silence." Golfo, supra, quoting Peck v Peck, 232 AD2d 540 (2d Dept. 1996). In Tutt, a waiver was found, but under a provision of a "so ordered" stipulation. That provided the proof of waiver in that case.
Defendant, however, relies not on an express waiver but rather on the conduct of the plaintiff, which he claims was marked by defaults in providing discovery, including the statement of net worth, which was never received. He cites Minkow v Metelka, 46 AD3d 864 (2d Dept. 2007), which held that a waiver of the plaintiff's right to discontinue had been demonstrated. In that case, as in the present matter, no pleadings had ever been served. The Appellate Division pointed to the fact that by the time the discontinuance was asserted the case was very far along. The grounds for the divorce had been established at an inquest, the divorce had been granted, and the trial on the issue of equitable distribution had begun. More importantly, the plaintiff "knowingly and willingly participated in the trial on the assumption' that pleadings had been served, and declined, in response to a direct question from the court, to object to the continuation of the trial in the absence of pleadings." This Court finds the Minkow decision to be consistent with the general notion that parties may chart their own procedural course. See generally, Anostario v Anostario, 255 AD2d 777, 779 (3d Dept. 1998). In that regard, it is apparent that the Appellate Division in Minkow was doing no more than holding the plaintiff to her clear consent to go to final judgment with the case in its then-current posture (i.e., without pleadings), and therefore would not allow her to raise later a right necessarily waived by that decision.
This is to be distinguished from other circumstances where, as here, an expressed willingness to litigate the entire case to conclusion without pleadings cannot be shown. Where the type of behavior seen in Minkow is absent, the right to discontinue is not lost, even if it is clear that the discontinuance is done for no reason other than to obtain a better result in new action.
Relatedly, resort to the equitable doctrine of estoppel in this procedural context has found little favor with the courts. For example, in McMahon v McMahon, 279 AD2d 346 (1st Dept. 2001) the plaintiff wife commenced an action by way of a summons with notice, and the defendant husband never demanded a complaint and thus never served an answer. Discovery commenced and was undertaken at a brisk pace, but during the course of these proceedings the wife discovered that the husband, a trader at Goldman Sachs, was to be a beneficiary of his employer's initial public stock offering ("IPO"). The IPO caused his shares in the company to appreciate considerably. Further proceedings went forward nonetheless, including motion practice regarding disclosure of evidence regarding the IPO, and trial dates were scheduled. The wife then discontinued the action, clearly to obtain the benefit of changing the commencement date of the action to have the appreciation of the husband's stock be considered marital property.
In denying the husband's motion to vacate the discontinuance on estoppel grounds, the Appellate Division found that "[t]he dispositive factor in this case is that the complaint was never served. Hence the wife retained the absolute and unconditional' statutory right to discontinue the action on notice." Id., at 348, quoting Battaglia v Battaglia, supra. Estoppel is inappropriate in this case as well. Assuming that the defendant is correct regarding the plaintiff's defalcations and her unabashed attempt to gain an advantage by discontinuing, his argument is based on a notion of fairness in the litigation — but this is insufficient. See, Giambrone v Giambrone, 140 AD2d 206 (1st Dept. 1988). It is only where a court must decide whether to permit the discontinuance under CPLR 3217(b) that considerations such as the rights of the adverse party and prejudice come into play. Id. As noted, that is not in issue on this motion.
The lesson to be learned from the foregoing authority is that more must be demonstrated than mere frustration with the actions or inaction of the plaintiff during the court proceedings. As was noted by the McMahon court by its citation to Giambrone, " a court's power to invoke equitable jurisdiction to vacate a notice must be limited to instances where the conduct is particularly egregious and amounts to more than just an altering of the respective rights of the parties.....' those facts [in Giambrone] simply [did] not rise to the level of deviousness, trickery, or fundamentally unfair conduct such as would justify depriving plaintiff of a procedural remedy to which he is statutorily entitled' ". McMahon, supra, at 349.
Thus, even assuming that the delay in the case can be attributed to the plaintiff, that she has disobeyed Court orders and has generally been uncooperative with the litigation process, there is no proof of conduct that is sufficient to equitably bar her from exercising her statutory right to discontinue the action. Indeed, it is at least arguable that as the defendant never took action to bring the issue of the absence of a complaint to the Court earlier in the litigation by moving to dismiss for plaintiff's failure to serve the pleading (see, CPLR 3012[b]), he cannot now be heard to complain that she has made use of her right to discontinue, which the absence of the pleadings provides her.
In sum, this Court cannot find in the record before it a waiver of plaintiff's statutory right to discontinue, nor the type of behavior that would rise to the level justifying the invocation of its equitable powers. Accordingly, it concludes that plaintiff's statutory right to discontinue pursuant to CPLR 3217(a) is unimpaired.
In view of the foregoing, the motion to vacate the notice of discontinuance and for attorney's fees is denied in its entirety. The cross motion is also denied in its entirety, as the Court does not find the motion to have been frivolous within the meaning of 22 NYCRR § 130-1.
This shall constitute the Decision and Order of this Court.
ENTER
DATED: November 21, 2011
___________________________
Hon. Daniel Palmieri,
J. S. C