Mamet v. Mamet

• Decision Date: 23 July 1987
• Citation: Mamet v. Mamet, 518 N.Y.S.2d 5, 132 A.D.2d 479 (N.Y. App. Div. 1987)
• Parties: Wendy MAMET, Plaintiff-Appellant-Respondent, v. Edward MAMET, Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 5

518 N.Y.S.2d 5

132 A.D.2d 479

Wendy MAMET, Plaintiff-Appellant-Respondent, v. Edward MAMET, Defendant-Respondent-Appellant.

Supreme Court, Appellate Division First Department.

July 23, 1987.

H. Brezinsky, New York City, for plaintiff-appellant-respondent.

M.H. Mayo, New York City, for defendant-respondent-appellant.

Before MURPHY, P.J., and KUPFERMAN, SANDLER, CARRO and ELLERIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Burton Sherman, J.), entered February 3, 1986, which denied plaintiff-appellant Wendy Mamet's motion to dismiss this matrimonial action as abandoned, denied defendant-respondent Edward Mamet's cross motion to amend his answer to assert counterclaims and permitted plaintiff to move to discontinue the marital action with prejudice to the institution of a subsequent marital action based on any conduct which might have been the basis of an action prior to October 26, 1982, is modified, on the law, to grant plaintiff-appellant's motion to dismiss the action as abandoned, and the order is otherwise affirmed without costs.

In January of 1980, plaintiff-appellant, Wendy Mamet, initiated divorce proceedings against her husband, defendant-respondent. On June 30, 1980, the husband served an answer, which asserted no counterclaims. The wife obtained an order of temporary support, and the case was noticed for trial. During this period, however, the parties decided to reconcile, and in September of 1981, the case was marked "off" the trial calendar pursuant to stipulation. Thereafter, the parties attended marriage counseling, took vacations together and cohabited for specific periods of time.

The years of reconciliation ended, and in March of 1985 the wife again consulted an attorney. She did not consult the attorney who had represented her in the 1980 action, since she assumed that he was no longer representing her. Her new attorney assured her that the 1980 matrimonial action had been abandoned and recommended that she start a new action for divorce.

In late 1985, the wife received a letter from her attorney in the prior matrimonial action, stating that a trial had been scheduled in the action. She later discovered that in August of 1982, her husband had moved to restore the 1980 action to the calendar. Unbeknownst to the wife, by order signed in October of 1982, the husband was granted the right to restore the case to the trial calendar. However, during their period of reconciliation, the husband held on to the order, and three years later, after reconciliation had failed, he succeeded in having the 1982 order of restoration entered.

Subsequently, the wife made the underlying motion to have the 1980 matrimonial action dismissed as abandoned, and the husband requested leave to amend his answer to interpose counterclaims. By order dated February 3, 1986, Justice Sherman denied both motions but specifically provided that the wife could move to "discontinue her action with prejudice to the institution of a subsequent matrimonial action based upon any conduct which might have been the basis of an action prior to October 26, 1982." On February 3, 1986, the wife made an oral motion to discontinue the action with prejudice, which motion was granted. Nonetheless, the wife has perfected this appeal, arguing that the court erred in failing to dismiss the matrimonial action as abandoned.

CPLR 3404 provides that a case marked off the trial calendar and not restored within one year shall be deemed abandoned and shall be dismissed. Furthermore, for a case to be restored to the calendar, an order of restoration must be entered within the one-year period. Farmer v. L.B. Smith, Inc., 52 A.D.2d 1068, 384 N.Y.S.2d 331; Campbell v. Puntoro, 36 A.D.2d 568, 569, 317 N.Y.S.2d 768. Although defendant had obtained an order of restoration prior to the expiration of the one-year period, he did not seek to have that order entered until three years later. By operation of CPLR 3404, this action was by that time abandoned and automatically dismissed, as the provisions of CPLR 3404 are self-executing. See, 3 Park Avenue Company v. New York City Educational Construction Fund, 109 A.D.2d 656, 657, 486 N.Y.S.2d 245. To reverse the effect of such a dismissal, a party must move to vacate it...