GREISMAN v. GREISMAN (2006)

This court is called upon to determine whether or not a waiver of the right to answer submitted as part of an uncontested divorce packet constitutes a responsive pleading vitiating the ability of a plaintiff-husband to voluntarily discontinue an action without court permission.   Plaintiff has moved by notice of motion for permission to voluntarily discontinue his cause of action pursuant to CPLR 3217(a)(1).   Defendant has moved for an order enforcing this court's pendente lite order of support of October 20, 2004.

Defendant has previously moved pursuant to order to show cause for an order (1) staying the entry of the judgment of divorce in the above captioned matter, (2) permitting defendant to withdraw her affidavit of consent consenting to the divorce complaint of plaintiff, (3) permitting defendant to interpose an answer and counterclaim in the above captioned action and (4) awarding child support to defendant in the sum of $500.00 per week.   The balance of those motions was held in abeyance until the rendering of a decision on the vacatur of the separation agreement.   That issue was referred on consent to Hon. Louise Gans, Judicial Hearing Officer, which resulted in a memorandum decision of Judge Gans dated January 14, 2006, wherein it was determined that the separation agreement executed November 24, 2003, by plaintiff and November 27, 2003, by defendant is invalid and should be set aside as “permeated by overreaching, unfairness or unconscionability”.¹

In her decision, Judge Gans notes that this is a marriage of 33 years;  there were 11 children born to the marriage;  and that defendant was and continues to primarily be a homemaker and plaintiff a certified public accountant.   The Judicial Hearing Officer states “․ Mrs. Greissman was an obvious candidate for lifetime maintenance consistent with the Greisman's standard of living (citations omitted)”.   The agreement is absent of any durational maintenance, allows her no health insurance and specifically denies her the right to life insurance proceeds.   JHO Gans states:

“There is no equitable distribution, even though there are valuable assets, such as Mr. Greisman's accounting practice, the marital home and the interest in 371 Carroll Street, which are susceptible to equitable distribution pursuant to Domestic Relations Law § 236[B], even if not necessarily to equal distribution [footnote omitted].

Likewise, the Agreement fails to provide expressly for the wife's right to occupancy of the the (sic) marital residence either before or after her youngest child is emancipated, or for her ownership of all or part of the furniture and furnishings in the marital home.”

Judge Gans further states:

“Absent any maintenance, no equitable distribution, no medical insurance, no life insurance benefits or other inheritance rights, and uncertainty as to the nature and extent of Mrs. Greisman's right to occupancy of the marital residence, the Separation Agreement here is manifestly unfair' and unconscionable'.”

The parties stipulated that the agreement violated the Child Support Standards Act (DRL §§ 236(B)(7) and 240) and that portion of the agreement was vacated on consent.

Thereafter, defendant was directed to settle an order on notice to effectuate the decision and to provide for prompt resumption of the proceedings before this court.   Inasmuch as the determination of Judicial Hearing Officer Gans was based upon a referral to hear and determine (on consent) the validity of the separation agreement, no order is required to be entered by this court and an order should be presented by defendant to JHO Gans forthwith (see Allison v. Allison, 28 A.D.3d 406, 813 N.Y.S.2d 161 [2nd Dept.2006] ).

Plaintiff alleges that he has an absolute right to discontinue the action notwithstanding the extensive litigation in this matter in that no answer has ever been provided.   Plaintiff pro se moves for the right to voluntarily discontinue this action and states:

“To Live to Fight Another Day,' as defined by the Urban Dictionary:  To withdraw instead of surrender, and save face by returning stronger than before, with the knowledge of past mistakes behind, and knowing where to attack the enemy.   It is better to live and fight another day than to die defending the undefendable.” ' (emphasis provided in the original)

The parties herein were married in September of 1971.   A Jewish divorce known as a “get” was granted to defendant on January 12, 2004, and plaintiff notes that on or about February 3, 2004, “a divorce package was filed in Kings County Supreme Court”.

CPLR 3217(a)(1) provides that:

“(a) Without an order any party asserting a claim may discontinue it without an order

1. by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier, and filing the notice with proof of service with the clerk of the court;”

Plaintiff moves pursuant to McMahon v. McMahon, 279 A.D.2d 346, 718 N.Y.S.2d 353 (1st Dept.2001), that prior to the service of the complaint and answer a party has an absolute and unconditional statutory right to discontinue the action notwithstanding the substantial discovery and even the scheduling of trial dates (see Newman v. Newman, 245 A.D.2d 353, 665 N.Y.S.2d 423 [2nd Dept.1997];  Giambrone v. Giambrone, 140 A.D.2d 206, 528 N.Y.S.2d 58 [1st Dept.1988];  Broder v. Broder, 59 N.Y.2d 858, 465 N.Y.S.2d 926, 452 N.E.2d 1254 [1983];  Battaglia v. Battaglia Sr., 59 N.Y.2d 778, 464 N.Y.S.2d 725, 451 N.E.2d 472 [1983] ).

Defendant opposes said application to discontinue the action and asserts that this case is distinguishable from those cited by plaintiff in that there was the existence of not only a bare summons herein but a complaint, affidavit in support of the uncontested divorce and a waiver signed by defendant in lieu of an answer.   Defendant asserts that she should be entitled to withdraw her waiver and file a verified answer.

According to Judge Gans decision, although Mrs. Greisman sought out an attorney and he prepared all of the papers, Mr. Greisman was the plaintiff represented by that attorney and Mrs. Greisman the defendant.   An uncontested divorce “packet” was executed and submitted together with the separation agreement.   Admitted into evidence at the hearing in the instant matter before the Judicial Hearing Officer was a summons with notice dated January 25, 2004, and a signed verified complaint on the grounds of constructive abandonment, both dated January 25, 2004.   Also contained in the uncontested divorce packet was an affidavit of plaintiff dated January 25, 2004, swearing to the underlying jurisdictional and factual claims of the action including that there were five minor children of the marriage and that both plaintiff and the children lived at the marital residence together with defendant during the past five years in Brooklyn, New York. The affidavit seeks dissolution of the marriage based upon constructive abandonment stating that on or about January 3, 2003, defendant constructively abandoned plaintiff.   An affirmation of regularity dated February 2, 2004, indicating that the summons and complaint were personally served upon defendant was affirmed by the attorney preparing the papers.   Additionally contained in the uncontested divorce packet is an affidavit of defendant (acknowledged) dated January 24, 2004, in which defendant admitted to service of the summons and complaint based upon constructive abandonment, appeared in the action, noted that she did not intend to respond to the summons and complaint, waived any 20 or 30 day period provided by law to answer the summons and consented to the action being placed on the uncontested divorce calendar immediately.

It should be noted that the order to show cause brought by defendant inter alia to stay the entry of judgment dated March 26, 2004, was brought less than two months after her waiver was signed.   Defendant simultaneously sought permission to withdraw her affidavit consenting to the divorce complaint and the underlying agreement by plaintiff herein.   A stay of the signing of the judgment remains in effect.

Defendant has shown that there are special circumstances herein in surrounding the waiver and agreement which would warrant a denial of plaintiff's application to voluntarily withdraw the action.   After plaintiff had her sign an agreement permeated by overreaching, unfairness or unconscionability, she promptly moved for permission to file an answer and was successful in having the agreement vacated (see Zuckerman v. Zuckerman, 105 A.D.2d 782, 481 N.Y.S.2d 1010 [2nd Dept.1984], St. James Plaza v. Notey, 166 A.D.2d 439, 560 N.Y.S.2d 670 [2nd Dept.1990], Aison v. Hudson River Black River Regulating District, 279 A.D.2d 754, 718 N.Y.S.2d 483 [3rd Dept.2001] ).

 Plaintiff is estopped based on misconduct and after all of the discovery that ensued, arrears in support and his admission that he intends to relitigate another day from claiming he has a right to discontinue at this late date voluntarily.

In the seminal decision on voluntary withdrawal Battaglia v. Battaglia Sr., 59 N.Y.2d 778, 464 N.Y.S.2d 725, 451 N.E.2d 472 (1983), the Court of Appeals unanimously adopted then Appellate Division, Third Department Justice Howard Levine's dissent (see Battaglia v. Battaglia Sr., 90 A.D.2d 930 at 934, 457 N.Y.S.2d 915 [1982] ).   In holding that a party has a right to voluntarily discontinue a pre-equitable distribution action, so as to take advantage of the then new DRL 236B equitable distribution statute, Judge Levine noted:

“The delay in pleading here which opened to plaintiff the avenue of discontinuance on notice was as much defendant's doing as plaintiff's, and not the result of any devious or unfair conduct which might constitute grounds for any equitable estoppel.   For all these reasons, we would reverse Special Term.”

The case at bar is the very example where estoppel should apply.   Defendant did nothing more than without counsel, sign away almost everything to her certified public accountant husband and consented to a divorce and then moved promptly to repudiate the agreement and her waiver.   Now, after extensive litigation of seeking to enforce the agreement, agreeing to a Judicial Hearing Officer to conduct a hearing on the issue, plaintiff attempts to voluntarily withdraw the action.   This court cannot sanction such misconduct.

The prejudice to defendant to have to start anew or defend a new action, would be substantial under these circumstances, especially where she has been able to secure at present the scarce legal resource of a legal services organization to represent her and is receiving little, if no, court-ordered support.

As stated by the Second Department in Conklin v. Wilbur, 26 A.D.2d 666, 272 N.Y.S.2d 793 (2nd Dept.1966), “[a]n efficient court system should not tolerate the casual prosecution of action and, hence, we shall not encourage the discontinuance device as an adjunct of delay.  (Schultz v. Kobus, 15 A.D.2d 382 [224 N.Y.S.2d 372 [4th Dept.1962]] ).”

The court is not mandated to allow for the discontinuance of the action.   Here not only was a summons and complaint executed but in lieu of testimony the affidavit of plaintiff was submitted in support of the uncontested divorce and defendant filed an affidavit waiving the right to answer.   Clearly, defendant's affidavit was predicated on the now vacated agreement and she must be permitted to withdraw same and file an answer.   Given the fact that the waiver of defendant was predicated on an agreement “permeated by overreaching, unfairness and unconscionability”, so was the waiver of defendant.

 In the unique circumstances at bar, defendant's waiver in the uncontested divorce packet is deemed to be, in effect, the equivalent to a responsive pleading.   By promptly moving to vacate that waiver and file an answer to the verified complaint, defendant effectively protected her rights in that the responsive affidavit should be deemed a responsive pleading to the verified complaint (see CPLR 104 “The civil practice law and rules, shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding”).   To allow plaintiff, after years of litigation and evidentiary hearings as well as testimony and a 30-page opinion written by the Judicial Hearing Officer which vacated the underlying agreement, to now withdraw the action to “fight another day” would be a waste of judicial economy and severely prejudice defendant.

Plaintiff, in effect, concedes he intends to start another action in the future.   He cannot be allowed to, as a result of being unsuccessful in having the agreement validated, now claim he himself never properly served the complaint or defendant failed to file an answer when she filed a waiver based upon his own misconduct.

Defendant also moves to enforce the pendente lite order of this court dated October 20, 2004, in which plaintiff acknowledged the arrears of $1,600.00 weekly support payments due and owing from August 24, 2004, through October 22, 2004, and wherein plaintiff agreed to continue to make weekly support payments of $250.00 per week to be paid by check on Mondays of each week commencing October 25, 2004, made payable and delivered to defendant.

 Plaintiff disputes the amount of monies which he is in arrears.   Notwithstanding whether or not the court exercises its discretion and allows the discontinuance of the action, defendant still has the right to move for arrears and enforcement of said pendente lite order by way of judgment (see Fotiadis v. Fotiadis, 18 A.D.3d 699, 795 N.Y.S.2d 729 [2nd Dept.2005], Dyandria M. v. Gerard M., 278 A.D.2d 37, 717 N.Y.S.2d 150 [1st Dept.2000] ).

The matter is referred to a Judicial Hearing Officer Gans to hear and report forthwith on the issue of calculation of arrears pursuant to the pendente lite order, if such hearing is on consent.   If not on consent, then that issue shall be referred to hear and report, within 60 days, upon the filing of the requisite forms and the approval of the Administrative Judge, pursuant to Article 22 of the Judiciary Law and 22 NYCRR Part 122.   The date will be fixed by the Clerk of the JHO Part.

At this juncture, defendant is entitled to seek relief pursuant to this action for the pendente lite sums of monies due and owing which continue to be due and owing until modified by this court.   Furthermore, to have to seek before a different forum the relief to enforce the pendente lite stipulation or commence a plenary action pursuant to DRL 240 would cause defendant great hardship.

Plaintiff is to provide to defendant's counsel an offer of proof as to payments made and receipts or cancelled checks within 14 days of today's date.

The order effectuating JHO Gans' determination relating to the agreement is to be submitted on notice to her for signature within 14 days of today's date.

The application to discontinue the action is denied, the application to withdraw defendant's waiver is granted to the extent that defendant shall file an answer in lieu of the waiver within 20 days of today's date.

The parties and counsel shall appear on November 8, 2006, at 9:30 in Part 5G for selection of a trial date.   The pendente lite consent order of support is continued pending trial.

This shall constitute the decision and order of the court.

FOOTNOTES

1.   Subsequent to the decision, plaintiff discharged his attorney and now appears pro se.   Defendant's attorney was relieved by the court after defendant defaulted in appearing on the return date of counsel's order to show cause to be relieved.   Subsequently, defendant retained Legal Services for New York City, Brooklyn Branch.

JEFFREY S. SUNSHINE, J.