DECISION & ORDER Upon the following papers read on the motion, to wit:1. Defendant’s Notice of Motion filed March 13, 2019;2. Affirmation in Opposition; and3. Reply AffirmationCurrently before the Court is Defendant’s Notice of Motion which seeks, inter alia: (1) an Order nullifying Plaintiff’s Notice of Voluntary Discontinuance and to restore this matter to the trial calendar; (2) an Order granting Defendant additional time to serve a responsive pleading; and (3) counsel fees in the amount of $2,245.00.Brief BackgroundThe parties before this Court were married for approximately 19 months, having been married on June 20, 2016 with the underlying action commenced by the Plaintiff on January 19, 2018. The Defendant reports that this short, childless marriage was tumultuous and that she was the victim of domestic violence. Defendant’s claims are supported by the “Stay Away” District Court Orders of Protection against Plaintiff and annexed to Defendant’s moving papers as Exhibit C.The Preliminary Conference of this matter was held on October 15, 2018 and the Court was advised that there were limited equitable distribution issues that the parties were unable to resolve. This Court, in an effort to assist the parties, opined as to how this case should progress towards resolution. The Plaintiff, who was visibly unhappy with this Court’s position, hired new counsel shortly thereafter.At the Status Conference held on December 7, 2018, it was clear to the Court that the parties were unable to resolve this matter without the need for a trial. Accordingly, the Court scheduled the case for trial, which was set to commence on February 26, 2019. The Court notes that it again observed Plaintiff’s unpleasant demeanor on that date.On the day of trial, the Defendant and Defendant’s counsel appeared at Court and advised that Plaintiff’s Counsel served, via facsimile, a Notice of Voluntary Discontinuance of Divorce Action on Friday, February 22, 2019 at 4:06 p.m. See Exhibit G to Defendant’s moving papers. Notably, the Notice of Voluntary Discontinuance was served by mail on Defendant’s Counsel on February 21, 2019 yet Plaintiff’s counsel waited until 4:06 p.m. on a Friday afternoon (2 business days before trial) to advise Defendant’s counsel of same.When Defendant’s counsel appeared on February 26, 2019, the Court’s Principal Law Clerk asked Defendant’s counsel if she filed a Verified Answer and/or Counterclaim. The Defendant’s counsel, an Officer of the Court, advised that she was never served with a Verified Complaint despite multiple demands for same. Upon review of the Court file and the Note of Issue documents, there was a copy of Plaintiff’s Verified Complaint with an Affidavit of Service purporting to have served Defendant’s counsel by mail on January 2, 2019. Defendant’s counsel again confirmed (as she does in her Affirmation annexed to Defendant’s moving papers) that, while she received the Note of Issue and ancillary documents, she never received the Plaintiff’s Verified Complaint. The Court then provided the Defendant’s counsel with a copy of Plaintiff’s Verified Complaint and advised that without an application before it, the Court was required to accept the Voluntary Notice of Discontinuance filed by the Plaintiff and discontinue the action.Nullification of Discontinuance & Restoration to Trial CalendarBranch a) of Defendant’s Notice of Motion seeks an Order nullifying the Plaintiff’s Notice of Voluntary Discontinuance dated February 21, 2019 and for an Order restoring this matter to the trial calendar.As Justice Matthew Cooper of New York County states, “…matrimonial actions are unique in the sense that, unless the parties decide to reconcile, discontinuance is often counterproductive and can be used to frustrate the ultimate goal”. See Marcilio v. Hennessy, 46 Misc.3d 1225(A) (Sup. Ct. N.Y. Cty. 2015). Indeed, Plaintiff’s gamesmanship on the eve of trial is both counterproductive and frustrated the parties’ ultimate goal, which was to bring this matter to a close.C.P.L.R. Rule 3217(a)(1) allows a party to voluntary discontinue an action without a Court Order “by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no responsive pleading is required, within twenty days after service of the pleading asserting the claim, and filing the notice with proof of service with the clerk of the court…” Despite the aforesaid rule, however, the right to discontinue a divorce action may be waived “under circumstances demonstrating the plaintiff’s voluntary and knowing relinquishment of that right”. Tutt v. Tutt, 61 A.D.3d 967, 968 (2d Dept. 2009). Furthermore, a plaintiff may be equitably estopped from filing a voluntary discontinuance if unfair prejudice may result. See Kane v. Kane, 163 A.D.2d 568, 570 (2d Dept. 1990); and Marcilio, supra. Finally, a discontinuance should not be granted when it would cause economic harm and inconvenience. See, Kane, 163 A.D.2d at 571.Here, pursuant to the So-Ordered Preliminary Conference Stipulation/Order dated October 15, 2018, the parties stipulated that Plaintiff would serve her Verified Complaint on or before November 1, 2018 and said date “shall be the date used to determine the timeliness of a Notice of Discontinuance…” See Exhibit D to Defendant’s moving papers. The So-Ordered Preliminary Conference Stipulation/Order is a binding contract between the parties. Tutt, 61 A.D.3d at 968. Accordingly, the Plaintiff waived her right to serve a notice of discontinuance more than 20 days after November 1, 2018.Even if the So-Ordered Preliminary Conference Stipulation/Order did not constitute a valid waiver of Plaintiff’s right to serve a notice of discontinuance, the Plaintiff would be estopped from filing same due to the unfair prejudice that would result to the Defendant. If this Court were to allow the Plaintiff to discontinue the action, the Defendant would be severely prejudiced, as well as the Defendant’s children (even though same are from another marriage). By way of example, Defendant details the discord and its effect the trauma has brought to her and her children. Additionally, discontinuing the action would cause economic harm to the Defendant as the “cut off date” for equitable distribution would be extended.Plaintiff argues that Defendant’s application is “disingenuous and hypocritical” because Defendant previously discontinued a prior divorce action she filed against the [now] Plaintiff. The Plaintiff’s argument is disregarded in its entirety because counsel for both parties executed a “Stipulation of Discontinuance” of the prior action and it was not served/filed 2 business days prior to the commencement of trial as Plaintiff did here. See Exhibit J to Defendant’s reply papers. Plaintiff’s remaining arguments are wholly without merit.“To grant a discontinuance in this case would be to lend the court’s aid to the [Plaintiff's] bad faith”. Kane, 163 A.D.2d at 571. Therefore, the Plaintiff’s Notice of Discontinuance dated February 21, 2019 is declared a nullity and is hereby vacated. Accordingly, this matter is restored to the trial calendar and the trial shall take place on June 5, 2019 at 10:00 a.m.Extension of TimeBranch b) of Defendant’s application seeks an Order granting her additional time to serve her responsive pleading.Upon an application of a party, C.P.L.R. §3012(d) allows for an extension of time of a pleading upon such terms as may be just and upon a showing of reasonable excuse for the delay or default. To extend the time to answer the complaint, the Defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense. Bank of New York Mellon v. Colucci, 138 A.D.3d 1047 (2d Dept. 2016). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the [Court]“. Id. (internal citations omitted).Here, despite several demands for same, the Defendant states that she never received the Verified Complaint until a copy was provided by the Court on or about February 26, 2019. The Plaintiff does not contest this statement by the Defendant but argues that Defendant never requested more time to answer the complaint prior to the application. As Defendant correctly pointed out, the Notice of Discontinuance was already filed by the time the Defendant was provided with a copy of Plaintiff’s Verified Complaint. The Court finds that the fact that Defendant never received the Plaintiff’s Verified Complaint is a reasonable excuse in Defendant’s delay/default in answering same. Moreover, the Defendant need not provide a meritorious defense as the parties stipulated to proceed on the grounds of “irretrievable breakdown” pursuant to Domestic Relations Law §170(7).Therefore, the Defendant’s application for additional time to serve her responsive pleading is granted and the Defendant shall have thirty (30) days from the date of this Decision and Order to serve and file her responsive pleading.Counsel FeesBranch c) of Defendant’s application seeks an award of counsel fees and filing fees for the necessity to bring this application in the sum of $2,245.00.22 N.Y.C.R.R. §130-1.1(a) and (c) state in relevant part:“(a) The court, in its discretion, may award to any party…in any civil action or proceeding before the court…costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorneys fees, resulting from frivolous conduct…* * *(c) For purposes of this Part, conduct is frivolous if:* * *(2) it is undertaken primarily to delay or prolong the resolution of the litigation…”Here, it is clear to the Court that the filing of the Notice of Discontinuance by the Plaintiff was only undertaken to delay or prolong the resolution of this litigation and the “Defendant was unquestionably burdened with having to take the time and expense to file this motion, and was made to face the anxiety of the case coming to an abrupt and incomplete end notwithstanding all the litigation that has ensued thus far.” Marcilio, supra.Therefore, the Defendant is awarded costs in the form of actual expenses reasonably incurred ($45.00 for the motion filing fee) and reasonable attorney’s fees ($1,925.00 as detailed in Exhibit I to Defendant’s moving papers) for a total amount of $1,970.00. The Plaintiff shall pay $1,970.00 directly to the Defendant’s counsel’s office within fifteen (15) days from the date of this Order. Furthermore, if the Plaintiff is not in compliance, upon the submission of an Affirmation of Non-Payment, the Clerk of the County of Suffolk is hereby directed to enter and docket a money judgment in favor of Dorothy M. Going, Esq. and against the Plaintiff Suzanne Verdi for such amount and Dorothy M. Going, Esq. shall have execution therefor.The Court finds it necessary to again quote its learned colleague, Justice Matthew Cooper, as follows: “Despite plaintiff not being able to discontinue in this instance, the case should stand as a warning to defendants of the perils of being remiss when it comes to pleadings, whatever the reason.” Marcilio, supra.Accordingly, it is herebyORDERED that the Defendant’s application to nullify Plaintiff’s Notice of Discontinuance pursuant to CPLR Rule 3217(a)(1) is granted; and it is furtherORDERED that this matter is restored to the trial calendar and the parties and counsel are directed to appear for the Trial of this matter on June 5, 2019 at 10:00 a.m.; and it is furtherORDERED that the Defendant’s application for additional time to serve her responsive pleading is granted and the Defendant shall have thirty (30) days from the date of this Decision and Order to serve and file her responsive pleading; and it is furtherORDERED that the Defendant is awarded $1,970.00 for costs and the Plaintiff is directed to pay same directly to Dorothy M. Going, Esq. with offices located at 170 Old Country Road, Suite 303, Mineola, New York 11501 within fifteen (15) days from the date of this Decision and Order; and it is furtherORDERED that if the Plaintiff is not in compliance with the counsel fee payment, upon the submission of an Affirmation of Non-Payment, the Clerk of the County of Suffolk is hereby directed to enter and docket a money judgment in favor of Dorothy M. Going, Esq. and against the Plaintiff, Suzanne Verdi, for such amount and Dorothy M. Going, Esq. shall have execution therefor.The foregoing constitutes the Decision and Order of this Court.Dated: April 29, 2019Central Islip, New York
