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A.K. v. T.K.

Supreme Court of New York, Second Department

May 24, 2017

A. K. (Anonymous), appellant,
v.
T. K. (Anonymous), respondent. Index No. 55113/15

          Law Office of Yonatan S. Levoritz, P.C., Brooklyn, NY, for appellant.

          Joel Borenstein, Brooklyn, NY, for respondent.

          REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN ROBERT J. MILLER BETSY BARROS, JJ.

          DECISION & ORDER

         Appeals by the plaintiff from two orders of the Supreme Court, Kings County (Carl J. Landicino, J.), both dated May 10, 2016. The first order, insofar as appealed from, denied those branches of the plaintiff's motion which were to vacate the defendant's notice of discontinuance in a prior action, to compel the defendant to accept untimely service of the plaintiff's summons and notice in another prior action, and to award her pendente lite relief retroactive to May 8, 2015. The second order, insofar as appealed from, granted those branches of the plaintiff's motion which were for pendente lite maintenance only to the extent of awarding her the sum of $5, 000 per month, pendente lite child support only to the extent of awarding her the sum of $2, 469 per month, both retroactive to November 16, 2015, and interim counsel fees only to the extent of awarding her the sum of $75, 000.

         ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

         This matrimonial action is the latest in a series of related actions involving the plaintiff wife and the defendant husband. The plaintiff commenced the first action for a divorce and ancillary relief in the Supreme Court, Kings County, by summons with notice filed April 10, 2015, but did not effectuate service until November 2015. Unaware of that pending action, the defendant commenced a second action for a divorce and ancillary relief in the Supreme Court, New York County, on April 13, 2015. The defendant then discontinued the second action at the plaintiff's urging and commenced a new action (hereinafter the third action) for a divorce and ancillary relief in the Supreme Court, Kings County, on May 4, 2015. The parties filed motions, made appearances, and obtained several temporary orders in the third action. Among those motions was the plaintiff's May 8, 2015, motion for pendente lite maintenance and child support. On November 2, 2015, before the court issued any order on the plaintiff's motion for pendente lite relief, the defendant discontinued the third action by notice pursuant to CPLR 3217(a). The defendant thereafter commenced a non-dissolution custody action against the plaintiff in New Jersey, which was dismissed when that court learned that the plaintiff had returned to Brooklyn with the parties' child. Meanwhile, the plaintiff commenced this action for a divorce and ancillary relief in the Supreme Court, Kings County, on November 5, 2015.

         The plaintiff made two motions in this action leading to the orders on appeal. First, applying several different CPLR provisions and principles in equity, the plaintiff, among other things, sought to relate this action back to filings in the first and third actions, primarily to have any pendente lite award apply retroactively to the date of her request in the third action rather than the date of her request in this action. Second, the plaintiff moved for pendente lite maintenance in the sum of $9, 461.10 per month, pendente lite child support in the sum of $5, 961.25 per month, and counsel fees in the sum of $150, 000. The Supreme Court denied the plaintiff's first motion in one order, and in a separate order awarded the plaintiff pendente lite maintenance and child support retroactive to the plaintiff's request in this action in amounts lower than the she requested. The court also awarded the plaintiff only $75, 000 in counsel fees. The plaintiff appeals from both orders. We affirm the orders insofar as appealed from.

         The Supreme Court properly declined to vacate the defendant's notice of discontinuance in the third action. Under CPLR 3217(a), a party may voluntarily 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" (CPLR 3217[a][1]). "Where no pleadings have been served... the plaintiff has the absolute and unconditional right' to discontinue the action by serving a notice of discontinuance upon the defendant without seeking judicial permission" (Tutt v Tutt, 61 A.D.3d 967, 967-968, quoting Battaglia v Battaglia, 59 N.Y.2d 778, 779; see Giambrone v Giambrone, 140 A.D.2d 206, 207-208). Here, neither a complaint nor a responsive pleading was ever served in the third action, thereby preserving the absolute and unconditional right to discontinue by serving notice (see Newman v Newman, 245 A.D.2d 353, 354).

         The Supreme Court also providently exercised its discretion in declining to compel the defendant to accept untimely service of the plaintiff's summons and notice in the first action. "Pursuant to CPLR 306-b, a court may, in the exercise of its sound discretion, grant a motion for an extension of time within which to effect service for good cause shown or in the interest of justice" (Emigrant Bank v Estate of Robinson, 144 A.D.3d 1084, 1085; see Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 103-106; Bumpus v New York City Tr. Auth, 66 A.D.3d 26, 31-32). "Good cause will not exist where a plaintiff fails to make any effort at service" (Bumpus v New York City Tr. Auth, 66 A.D.3d at 32, citing Valentin v Zaltsman, 39 A.D.3d 852). "In determining whether an extension of time is warranted in the interest of justice, a court may consider, inter alia, diligence, or lack thereof, ... expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant'" (Matter of Baumann & Sons Buses, Inc. v Ossining Union Free Sch. Dist., 121 A.D.3d 1110, 1113, quoting Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d at 105-106; see Thompson v City of New York, 89 A.D.3d 1011, 1012). Here, the plaintiff made no effort at timely service, and the defendant's litigation tactics and alleged misrepresentations did not warrant an extension of time in the interest of justice (see Brown v Sanders, 142 A.D.3d 940, 940-941).

         In light of the foregoing, the Supreme Court also correctly determined that the pendente lite awards should apply retroactively to the plaintiff's application for such relief in this action. A party's temporary maintenance and temporary child support obligations are "retroactive to the date of the first application therefor" (Bernstein v Bernstein, 143 A.D.2d 168, 170; see Wald v Wald, 44 A.D.3d 848, 849-850; Darema-Rogers v Rogers, 268 A.D.2d 455, 456). Here, the plaintiff's only applications for pendente lite relief consisted of her November 16, 2015, order to show cause in this action and her May 8, 2015, order to show cause in the discontinued third action. "When an action is discontinued, it is as if it had never been; everything done in the action is annulled and all prior orders in the case are nullified" (Newman v Newman, 245 A.D.2d 353, 354). The plaintiff's May 8, 2015, order to show cause was annulled upon the defendant's discontinuance of the third action, meaning that the plaintiff's request in this action was, in effect, her first such request (see id. at 353-354; cf. Mesholam v Mesholam, 11 N.Y.3d 24, 28-29).

         " Pursuant to Domestic Relations Law § 237(a), a court in a divorce action may award counsel fees to a spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties'" (Samimi v Samimi, 134 A.D.3d 1010, 1012, quoting Aloi v Simoni, 82 A.D.3d 683, 686; see DeCabrera v Cabrera-Rosete, 70 N.Y.2d 879, 881; Baron v Baron, 71 A.D.3d 807, 810). Although the amount of the award is a matter within the discretion of the Supreme Court, in seeking an award of attorneys' fees, an attorney must submit documentation showing the legal services performed, such as time records or a breakdown of services, and the time spent on each service (see Marshall v Marshall, 1 A.D.3d 323, 324; Reynolds v Reynolds, 300 A.D.2d 645, 646). Here, based on the documentation submitted by the plaintiff, the Supreme Court providently exercised its discretion in awarding her only $75, 000 of the $150, 000 she requested (see Lieberman-Massoni v Massoni, 146 A.D.3d 869, 869-870; Ashmore v Ashmore, 92 A.D.3d 817, 819-820).

         " Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires'" (Yerushalmi v Yerushalmi, 136 A.D.3d 809, 811, quoting Dowd v Dowd, 74 A.D.3d 1013, 1014). Any perceived inequities in pendente lite maintenance can best be remedied by a speedy trial, at which the parties' financial circumstances can be fully explored (see Dowd v Dowd, 74 A.D.3d at 1014; Swickle v Swickle, 47 A.D.3d 704, 705). Here, the plaintiff has not demonstrated the existence of exigent circumstances warranting a modification of the pendente lite maintenance and child support awards (see Tzu Ching Kao v Bonalle, 145 A.D.3d 703, 704).

         The plaintiff's remaining contentions are without merit.

          RIVERA, J.P., AUSTIN, MILLER and ...


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