HARVEY v. HARVEY (2005)

Upon reading and filing the defendant's Notice of Motion, dated May 24, 2005, the Affidavit of Joseph J. Scinta, Esq., dated May 24, 2005, and attached exhibits, the Affidavit in Support of Motion to Dismiss of Douglas Harvey, dated May 4, 2005, and attached exhibits, the Responding Affidavit of Patricia Harvey, dated June 2, 2005, the Attorney Affirmation of Deanne M. Tripi, Esq., dated June 2, 2005, and attached exhibits, the Notice of Discontinuance, filed June 3, 2005, the Reply Affirmation of Joseph J. Scinta, Esq., dated June 6, 2005, and attached exhibits, the defendant's Counterclaim, filed June 6, 2005, the Responding Affirmation of Deanne M. Tripi, Esq., dated June 29, 2005, and attached exhibits, and the Sur-Reply Affirmation of Deborah J. Scinta, Esq., dated June 30, 2005, this Court decides as follows:

I. Background

The plaintiff commenced an action for divorce by filing a Summons with Notice on July 31, 2003 and personally serving same on the defendant on August 5, 2003.   The plaintiff asserts that although she had retained counsel to negotiate a divorce settlement, she did not authorize her attorney to commence an action and was not aware that an action had been commenced.   It is undisputed that the parties attempted to negotiate a settlement after the first action was commenced, but no agreement was reached.   The defendant was not represented by counsel during the negotiations.

The plaintiff subsequently discharged her counsel and retained new counsel who commenced a second action by filing a Summons with Notice on March 22, 2004 and personally serving same on the defendant on March 25, 2004.   The defendant served a Notice of Appearance and Demand for Complaint in the second action on April 23, 2004.   The plaintiff served a Complaint in the second action on June 21, 2004.   The parties engaged in discovery and a Request for Judicial Intervention in the second action was filed on August 2, 2004.   Both counsel appear to have been unaware of the first action until March, 2005.

On May 2, 2005, the defendant served a Notice of Appearance and Demand for Complaint in the first action and thereafter filed the within Motion to Dismiss the second action.   On June 3, 2005, the plaintiff served a Notice of Discontinuance in the first action pursuant to CPLR 3217(a)(1) and filed an Affidavit of Service of that notice on June 7, 2005.   The defendant filed a paper denominated “Counterclaim” on June 6, 2005.   It is unclear when the Counterclaim was served, but an affidavit of service was filed on June 7, 2005.   The Counterclaim was not interposed with an answer.

II. Decision

Under CPLR 3217(a)(1), a plaintiff has the absolute and unconditional right to discontinue an action without seeking a court order, through the service of a notice of discontinuance prior to the service of a responsive pleading or within 20 days after service of the pleading asserting the claim, whichever is earlier, and filing proof of service.   See Newman v. Newman, 245 A.D.2d 353, 354, 665 N.Y.S.2d 423 (citing Battaglia v. Battaglia, 59 N.Y.2d 778, 464 N.Y.S.2d 725, 451 N.E.2d 472);  Giambrone v. Giambrone, 140 A.D.2d 206, 206-207, 528 N.Y.S.2d 58.

 Here, neither a complaint nor a responsive pleading was served in the first action.  “The relevant pleading that, if served, narrows the plaintiff's options to the other provisions of CPLR 3217, is the complaint rather than the summons․ [S]ervice of a summons with notice, without service of the complaint, is not a pleading for purposes of the section.”   McMahon v. McMahon, 279 A.D.2d 346, 348, 718 N.Y.S.2d 353. Contrary to the defendant's assertions, service of the purported counterclaim, irrespective of the delay of that service, does not constitute service of a responsive pleading.   The defendant's counterclaim is a nullity because it was not interposed through the service of an answer to a complaint.   See Broder v. Broder, 59 N.Y.2d 858, 465 N.Y.S.2d 926, 452 N.E.2d 1254;  Newman v. Newman, 245 A.D.2d 353, 354, 665 N.Y.S.2d 423.   Additionally, the CPLR does not provide for service of a counterclaim where a summons is served without a complaint and a subsequent complaint is never filed.  Newman, 245 A.D.2d at 354, 665 N.Y.S.2d 423;  see generally, CPLR 3011, 3012.

 Finally, the delay in pleading in this case was not the result of any devious or unfair conduct that might constitute grounds for equitable estoppel.   See Battaglia, 59 N.Y.2d 778, 464 N.Y.S.2d 725, 451 N.E.2d 472.   “Even if under special circumstances ‘devious or unfair conduct’ may estop a party from asserting his statutory right to discontinue under CPLR 3217(a)(1), ․ a court's power to invoke equitable jurisdiction to vacate a notice must be limited to instances when the conduct is particularly egregious and amounts to more than just an altering of the respective rights of the parties․” Giambrone, 140 A.D.2d at 207, 528 N.Y.S.2d 58.   Based on the circumstances in this case, this Court finds that such “devious and unfair conduct” is not present.

Because neither a complaint nor responsive pleading was served or filed in the first action, this Court lacks authority to deny the plaintiff her right to discontinue her first action under CPLR 3217(a)(1).   See Broder v. Broder, 59 N.Y.2d 858, 465 N.Y.S.2d 926, 452 N.E.2d 1254.

Based on the foregoing, it is hereby

ORDERED that the defendant's Motion to Dismiss the second action is denied.

The foregoing Decision constitutes the Order of this Court.   No further Order need be submitted.

ERIN M. PERADOTTO, J.