Battaglia v. Battaglia

• Decision Date: 24 November 1982
• Parties: Patricia J. BATTAGLIA, Appellant, v. Philip S. BATTAGLIA, Sr., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 915

457 N.Y.S.2d 915

90 A.D.2d 930

Patricia J. BATTAGLIA, Appellant, v. Philip S. BATTAGLIA, Sr., Respondent.

Supreme Court, Appellate Division Third Department.

Nov. 24, 1982.

Robert W. Kahn, Albany (Peter K. Levine, Albany, of counsel), for appellant.

DeGraff, Foy, Conway, Holt-Harris & Mealey, Albany (Barbara S. Brenner, Albany, of counsel), for respondent.

Before MAHONEY, P.J., and SWEENEY, KANE, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered August 6, 1981 in Albany County, which granted defendant's motion to dismiss an action for divorce, and denied plaintiff's cross motion for an order declaring that a previous action for divorce had been voluntarily discontinued without prejudice.

Plaintiff commenced an action for a divorce on January 3, 1978 by service of a summons and notice, alleging the grounds to be adultery and seeking alimony, custody of minor children, support for the children, and counsel fees. No complaint was ever served. Negotiations between attorneys for an amicable disposition without service of a formal notice of appearance or demand for a verified complaint were unsuccessful. On December 17, 1980, plaintiff served upon defendant's attorneys a notice pursuant to CPLR 3217 (subd. [a], par. 1), voluntarily discontinuing the action without costs or prejudice to either party. Defendant rejected the notice and returned it the same day together with a formal notice of appearance and demand for complaint. The next day, December 18, 1980, plaintiff commenced another action for divorce by service of a summons and notice together with a verified complaint. Special Term granted defendant's CPLR 3211 (subd. [a], par. 4) motion dismissing the second action and denied plaintiff's cross motion for an order pursuant to CPLR 3217 (subd. [a], par. 1) seeking a declaration that the voluntary discontinuance of the first action was valid. Plaintiff has appealed.

Plaintiff's admitted purpose in seeking to voluntarily discontinue the first action was to take advantage of the amendment to section 236 of the Domestic Relations Law, commonly called the "Equitable Distribution Law", which became effective July 19, 1980, enlarging substantially the power of the court to distribute property held during the marriage in certain matrimonial actions (L. 1980, ch. 281, § 9). It is now well settled that our courts will permit neither amendment of a complaint in a matrimonial action pending prior to July 19, 1980, the "watershed" date of the Equitable Distribution Law (Valladares v. Valladares, 55 N.Y.2d 388, 449 N.Y.S.2d 687, 434 N.E.2d 1054), nor grant an order of discontinuance of a pending matrimonial action pursuant to CPLR 3217 (subd. [b] ) (Pollack v. Pollack, 56 N.Y.2d 968, 453 N.Y.S.2d 623, 439 N.E.2d 339; Zuckerman v. Zuckerman, 56 N.Y.2d 636, 450 N.Y.S.2d 786, 436 N.E.2d 192; Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683, 434 N.E.2d 1050). Plaintiff, however, seeks to distinguish her case from Valladares by contending that her discontinuance was made pursuant to CPLR 3217 (subd. [a], par. 1) rather than CPLR 3217 (subd. [b] ). ^*

We are today called upon to determine whether this plaintiff has a clear legal right to discontinue her action because such right was timely asserted since neither a complaint nor even a formal notice of appearance and demand for a complaint had been served during the three years following commencement of the action. We must determine whether the factual circumstances peculiar to this case and the legislative intent unequivocally expressed in the limitation of the rights of parties to invoke the benefits of section 236, Part B, of the Domestic Relations Law should operate to deny plaintiff of her apparent right to a CPLR 3217 (subd. [a], par. 1) voluntary discontinuance. In our examination, we note that "[t]he general rule that a plaintiff has a right to discontinue his action upon appropriate terms cannot be strictly applied in divorce cases because: (1) The rights of the parties to the record are not alone to be considered. The public is regarded as a party, and must be treated as such by the court. (2) Because of the public interest, the court has been invested with a wider discretion in the control of the course of procedure in matrimonial actions than in others" (19 Carmody-Wait 2d, N.Y. Practice, § 114: 126, pp. 192-193; see Hutchison v. Hutchison, 87 Misc.2d 1071, 1075, 386 N.Y.S.2d 897, affd. on memorandum at Special Term, HOREY, J., 55 A.D.2d 817, 390 N.Y.S.2d 607). We find the right to voluntary discontinuance, if timely asserted, has already been abridged in several instances where a paramount public interest dictates that this right be limited, and sometimes court approval has been required by statute or case law where the public is deemed to have an interest that must be safeguarded by the court, e.g., in matrimonial cases (4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3217.05; see Hutchison v. Hutchison, supra ). Indeed, CPLR 908 requires court approval of discontinuance of a class action; section 626 (subd. [d] ) of the Business Corporation Law provides similar protection for a nonparty shareholder in a shareholder's derivative action; section 71-0505 (subd. 3) of the Environmental Conservation Law requires court approval to discontinue a suit involving title to State lands in forest preserve counties; and CPLR 3217 (subd. [a], par. 2) requires court approval of a written voluntary stipulation of discontinuance where an infant, incompetent person for whom a committee has been appointed, or a conservatee is a party. Court decisions have followed the leading case of Winans v. Winans, 124 N.Y. 140, 26 N.E. 293 which established the exception to the statutory right of voluntary discontinuance of matrimonial suits, holding that parties to such litigation are denied the same right of self-control generally permitted in lawsuits (see, also, Schneider v. Schneider, 32 A.D.2d 630, 300 N.Y.S.2d 270; Winston v. Winston, 21 App.Div. 371, 47 N.Y.S. 399; Smith v. Smith, 62 Misc.2d 574, 309 N.Y.S.2d 80; Bishop v. Bishop, 62 Misc.2d 436, 308 N.Y.S.2d 998; Harley v. Harley, 19 Misc.2d 74, 185 N.Y.S.2d 893). We must note the contrary holding of the Appellate Division, Second Department, in Kamhi v. Kamhi, 42 A.D.2d 966, 347 N.Y.S.2d 972), in which, as in this case, only service of a summons and notice had been made. The Kamhi court upheld the plaintiff's statutory right to timely voluntarily discontinue the action after defendant moved for pendente lite relief. Principal to its rationale for permitting voluntary discontinuance was the fact that the defendant wife had available to her proceedings in both Supreme and Family courts. This court has previously upheld the exercise of a trial court's discretion in granting an order for voluntary discontinuance of a wrongful death action to enable the plaintiff to reinstitute the action in Federal Court where larger damage awards had been obtained (Schimansky v. Nelson, 50 A.D.2d 634, 374 N.Y.S.2d 771). Central to our decision in Schimansky, we found absent a showing that prejudice to the defendants or others would result (citing 7 Carmody-Wait 2d, N.Y. Practice, § 47:12). Here, we find that, unlike Schimansky, substantial prejudice would result should we now permit voluntary discontinuance, for indeed, as plaintiff concedes with candor, defendant would be subjected to the distribution of those assets accumulated during the marriage under Part B of the Equitable Distribution Law.

Unilateral discontinuance on notice should be available only at the earliest stages of litigation, in order to avoid prejudicial results (Irrigation & Ind. Development Corp. v. Indag S.A., 75 Misc.2d 66, 68, 347 N.Y.S.2d 397; Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3217:1, p. 1005; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3217.01). The purpose of CPLR 3217 (subd. [a], par. 1) is to prescribe precisely when voluntary discontinuance is permissible. The right to discontinue must strictly be construed against the party asserting it, to avoid prejudice (Irrigation & Ind. Development Corp. v. Indag S.A., supra ). The absence of prejudice may not be presumed; it must appear clearly, and substantial justice must be served in permitting a voluntary discontinuance. Certainly, the statutory provision should not be employed as a means of harassment, a device for inequity, or a source of repetitive litigation. That is not its purpose (Headley v. Noto, 45 Misc.2d 284, 256 N.Y.S.2d 750, affd. 24 A.D.2d 493, 261 N.Y.S.2d 846).

It appears that the initial lawsuit was commenced January 3, 1978, and that almost three years elapsed without service of a formal notice of appearance or a complaint during negotiations which included scheduling of defendant's deposition and informal requests for service of the complaint. Instead of the promised complaint, plaintiff's attorneys delivered the notice of voluntary discontinuance on December 17, 1980, and on the very next day served defendant with a new summons, notice and complaint seeking the benefits of the new Equitable Distribution Law. The Court of Appeals stated in Valladares v. Valladares, 55 N.Y.2d 388, 391, 449 N.Y.S.2d 687, 434 N.E.2d 1054, supra On approval of the legislation by the Governor, July 19, 1980, became the watershed; property rights in actions commenced prior to that date are to be resolved in accordance with the law as set out in Part A; only actions commenced subsequent to that date are subject to the equitable distribution provisions contained in Part B.

The Legislature was meticulous in making explicit within its enactment of the 1980 amendment to section 236 of the Domestic Relations Law the signal date of July 19, 1980. It is not the function of the courts to discard clear language adopted by the Legislature by sanctioning the use of procedural mechanisms which would produce not only the...