Motler v. Motler

• Decision Date: 22 November 1983
• Citation: 457 N.E.2d 691,469 N.Y.S.2d 586,60 N.Y.2d 244
• Parties: , 457 N.E.2d 691 Jay M. MOTLER, Appellant, v. Susan MOTLER, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 586

469 N.Y.S.2d 586

60 N.Y.2d 244, 457 N.E.2d 691

Jay M. MOTLER, Appellant, v. Susan MOTLER, Respondent.

Court of Appeals of New York.

Nov. 22, 1983.

[457 N.E.2d 692] Larry Jay Kushner, P.C., New York City, for appellant

Perry Satz, P.C., Poughkeepsie, for respondent.

OPINION OF THE COURT

JASEN, Judge.

On this appeal we are asked to decide whether it was error to grant defendant wife's motion to discontinue a counterclaim interposed in an action for divorce after the effective date of part B of section 236 of the Domestic Relations Law, the "Equitable Distribution Law", when plaintiff husband commenced the action prior to that date.

On July 17, 1980, two days before the effective date (July 19, 1980) of the Equitable Distribution Law, plaintiff husband commenced an action for divorce. On August 7, 1980, after the effective date of the new law, defendant answered the complaint in which she asserted a counterclaim for divorce. Defendant then moved for leave to discontinue her counterclaim for the conceded purpose of commencing a separate action and obtaining the benefits of the Equitable Distribution Law. Supreme Court granted defendant's motion to discontinue. The Appellate Division unanimously affirmed, reasoning that discontinuance would serve only to permit correction of a tactical error of form, not substance, because defendant could have commenced an independent action after July 19, 1980, rather than interposing a counterclaim in the pending action. We agree.

A spouse should not be barred from access to the benefits of the Equitable Distribution Law by being denied procedural remedies to which he or she is unconditionally entitled under the CPLR. (Battaglia v. Battaglia, 59 N.Y.2d 778, 464 N.Y.S.2d 725, 451 N.E.2d 472, revg. on dissent below 90 A.D.2d 930, 457 N.Y.S.2d 915.) Specifically, CPLR 3019 provides that all counterclaims are "permissive" and a party may assert his or her claim against the plaintiff as a counterclaim or may bring a separate suit. (Siegel, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3019:2, p. 216.) Thus, defendant could have commenced an independent action for divorce after July 19, 1980, rather than interposing a counterclaim in the pending action. Defendant's failure to commence a separate action for divorce at the time the answer and counterclaim were interposed, after the new statute became effective, constituted a tactical error of form, not substance, and should not bar her from access to the benefits of the Equitable Distribution Law.

Nor do our holdings in Valladares v. Valladares, 55 N.Y.2d 388, 449 N.Y.S.2d 687, 434 N.E.2d 1054, Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683, 434 N.E.2d 1050, Zuckerman v. Zuckerman, 56 N.Y.2d 636, 450 N.Y.S.2d 786, 436 N.E.2d 192 and Pollack v. Pollack, 56 N.Y.2d 968, 453 N.Y.S.2d 623, 439 N.E.2d 339 require a different result. In Valladares, the defendant wife served her answer prior to the effective date of the statute and then moved after the new statute became effective to amend her answer to assert a counterclaim for divorce and demand equitable distribution. Defendant was allowed to amend the answer to add her counterclaim for divorce, but the demand for equitable distribution was denied. The issue of whether a party, as in this case, may institute an independent action after the effective date of the Equitable...