Dattoria v. Dattoria

• Decision Date: 24 May 1990
• Citation: 161 A.D.2d 1009,557 N.Y.S.2d 579
• Parties: Carmen T. DATTORIA, Respondent, v. Frances M. DATTORIA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 579

557 N.Y.S.2d 579

161 A.D.2d 1009

Carmen T. DATTORIA, Respondent, v.Frances M. DATTORIA, Appellant.

Supreme Court, Appellate Division Third Department.

May 24, 1990.

Bernstein, Gitlitz & Sukloff(Gary W. Schanz, of counsel), Binghamton, for appellant.

Philip E. Van Riper, Binghamton, for respondent.

Before MAHONEY, P.J., and CASEY, WEISS, LEVINE and HARVEY, JJ.

HARVEY, Justice.

Appeals (1) from that part of an order of the Supreme Court(Ingraham, J.), entered April 25, 1989 in Broome County, which, inter alia, conditionally granted defendant's motion to dismiss the complaint pursuant to CPLR 3012(b), and (2) from an order of said court, entered June 12, 1989 in Broome County, which, inter alia, denied defendant's motion for summary judgment dismissing the complaint.

The parties to this action were married in January 1951 and have four emancipated children.The record demonstrates that the parties have not lived together since approximately 1977.Defendant lives in the marital home.Since the separation, defendant has commenced one action for divorce on the ground of cruel and inhuman treatment and plaintiff has commenced two others, one on the ground of cruel and inhuman treatment and the other for constructive abandonment.All of these actions were either abandoned or dismissed.This latest action for divorce was commenced by plaintiff on October 3, 1988 by service of a summons with notice.The stated ground for the action was again cruel and inhuman treatment.On October 14, 1988, defendant filed a notice of appearance and written demand for the complaint and a copy of plaintiff's net worth statement.Plaintiff failed to timely serve either document and, on November 9, 1988, defendant's counsel again demanded service of the complaint and net worth statement.Thereafter, while the record indicates that there were some initial attempts by the parties to reach a settlement, there is no indication that this possibility was actively pursued.

Accordingly, on January 20, 1989, a written demand for the complaint and statement was sent to plaintiff.With no response forthcoming, defendant filed a motion to dismiss on March 1, 1989 on the grounds of failure to serve a complaint (see, CPLR 3012[b] and failure to serve a net worth statement.Plaintiff cross-moved for leave to serve a late complaint.Supreme Court, without opinion, conditionally granted defendant's motion to dismiss unless plaintiff served a complaint on or before March 31, 1989.The court also awarded defendant a conditional penalty relating to the service of plaintiff's statement of net worth, denied defendant's request for costs, counsel fees and sanctions, and ordered plaintiff to pay defendant $150.Plaintiff thereafter served his complaint on April 1, 1989.Defendant answered and moved principally for summary judgment.Supreme Court, without opinion declined to dismiss the complaint but ordered, among other things, that defendant be paid $1,000 in interim counsel fees.Defendant now appeals from the first order conditionally allowing plaintiff to serve a late complaint and denying counsel fees and sanctions.She also appeals from the court's second order denying summary judgment and awarding interim counsel fees in the amount of $1,000.

Initially, we agree with defendant that Supreme Court abused its discretion in conditionally allowing plaintiff to serve a late complaint and not dismissing it outright pursuant to CPLR 3012(b).This court has held in the past that the failure to serve a timely complaint is generally dismissible default unless "the motion is successfully met by a satisfactory excuse and an affidavit of merits"(Hanley v. Callanan Indus., 60 A.D.2d 706, 401 N.Y.S.2d 7;see, Kinnear v. Iacovelli, 70 A.D.2d 675, ...