Parvin v. Parvin

• Decision Date: 07 March 1972
• Citation: 69 Misc.2d 318,329 N.Y.S.2d 885
• Parties: Madeleine PARVIN, Plaintiff, v. Manoucher PARVIN, Defendant.
• Court: New York Supreme Court

Page 885

329 N.Y.S.2d 885

69 Misc.2d 318

Madeleine PARVIN, Plaintiff, v. Manoucher PARVIN, Defendant.

Supreme Court, Special Term, New York County, Part XII.

March 7, 1972.

Jacob Freed Adelman, New York City, for plaintiff.

Botein, Hays, Sklar & Herzberg by Graham M. Scheinman, New York City, for defendant.

Louis J. Lefkowitz, Atty. Gen., for Conciliation Commissioner, Leo D. Politzer.

ARNOLD L. FEIN, Justice.

Motion by defendant for an order vacating the certificate of no necessity issued by the Conciliation Commissioner, directing the Commissioner to fix a date for a conciliation conference and dismissing the complaint is in all respects denied.

That portion of the relief sought which requests that the Commissioner be directed to fix a date is in reality an application to compel the Commissioner to perform an act purportedly mandated by statute. Assuming the propriety of such application, defendant should have proceeded by way of an Article 78 proceeding.

Nevertheless, the court will deal with the issue on the merits in order that there be no unnecessary delay in proceeding with this action. No matter what the form of proceeding, it is clear that defendant is not entitled to the relief sought.

The action was commenced on or about December 14, 1971. Admittedly, on or about December 28 or 29, 1971, defendant received the Conciliation Commissioner's notice of filing of the divorce action, dated December 27, 1971, which was within the time prescribed by section 215--c(b)(2) of the Domestic Relations Law. 'Sometime * * * during the first week of January', defendant allegedly conferred with his attorney. No action was taken, although the Commissioner's notice requested return of the confidential statement within five days. Thereafter, and in the absence of a formal statement from defendant, the Conciliation Commissioner issued a certificate of no necessity on January 12, 1972.

Defendant contends it was always his intention to seek a conference with a view toward reconciliation and that a certificate of no necessity should not have been issued before a date was fixed for a conciliation conference.

Domestic Relations Law section 215--c, subd. b(2) provides:

'The commissioner shall give notice of the filing under subdivision a of section two hundred fifteen-e of this article to all parties within five days after the matter is assigned to him and shall fix a date for a conciliation conference. All parties shall be required to attend at least one...