| Minkow v Metelka |
| 2007 NY Slip Op 10520 [46 AD3d 864] |
| December 26, 2007 |
| Appellate Division, Second Department |
| Ellen Minkow, Appellant, v Elliot D. Metelka,Respondent. |
—[*1] Schlissel, Ostrow, Karabatos & Poepplein, PLLC, Garden City, N.Y. (Michael J. Ostrow andJennifer Rosenkrantz of counsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from so much of an order of the Supreme Court, Suffolk County (Bivona, J.), dated September13, 2006, as denied her motion to vacate an order of the same court dated June 14, 2006, whichgranted the defendant's oral application to vacate her notice of voluntary discontinuance.
Ordered that the order is affirmed insofar as appealed from, with costs.
Although a plaintiff has an "absolute and unconditional" right to discontinue an action priorto the service of a responsive pleading (see CPLR 3217 [a]; Newman v Newman,245 AD2d 353, 354 [1997]; Knitwork Prods. Corp. v Helfat, 234 AD2d 345, 346[1996]), that right may be waived by the plaintiff's conduct in the action. Here, despite the factthat no pleadings were ever served, the plaintiff did not attempt to exercise her right todiscontinue until it became apparent at trial that the Supreme Court was likely to rule against herwith respect to the scope of the issues to be considered in determining the distribution of themarital estate. At that point in the litigation, however, a preliminary conference had been held,the grounds for the divorce had been established at an inquest, the court had granted thejudgment of divorce, holding its entry in abeyance pending resolution of the ancillary issues, andthe equitable distribution trial had begun. The plaintiff knowingly and willingly participated inthe trial on the "assumption" that pleadings had been served, and declined, in response to a directquestion from the court, to object to the continuation of the trial in the absence of pleadings.Since these circumstances clearly demonstrate the plaintiff's voluntary relinquishment [*2]of a known right (see Nassau Trust Co. v Montrose ConcreteProds. Corp., 56 NY2d 175, 184 [1982]), the Supreme Court correctly concluded that theplaintiff waived her right to discontinue, and providently exercised its discretion in declining tovacate the order granting the defendant's oral application to vacate the plaintiff's notice ofvoluntary discontinuance. Spolzino, J.P., Krausman, Goldstein and Dickerson, JJ., concur.