| Clemente v Clemente |
| 2008 NY Slip Op 03700 [50 AD3d 514] |
| April 24, 2008 |
| Appellate Division, First Department |
| William Clemente, Respondent, v Ana Rosa Clemente,Appellant. |
—[*1] Charles Zolot, Jackson Heights, for respondent.
Order, Supreme Court, Bronx County (Ira R. Globerman, J.), entered on or about June 19,2007, which, insofar as appealed from, granted plaintiff husband's motion to dismiss defendantwife's counterclaim for a separation as abandoned nunc pro tunc to March 26, 1995, and directeda hearing to determine the amount of arrears and interest, if any, owed by the husband in childsupport and spousal maintenance for the period between January 3, 1994 and March 24, 1995,unanimously modified, on the law and the facts, to the extent of dismissing the counterclaim asabandoned as of June 19, 2007, and ordering a hearing to determine the amount of arrears andinterest, if any, owed by the husband in child support and maintenance for the period betweenJanuary 18, 1994 and June 19, 2007, and otherwise affirmed, without costs.
The motion court properly dismissed the wife's counterclaim for a separation pursuant CPLR3215 (c), since she failed to enter a default judgment on the counterclaim within one year of thedefault, and failed to offer a reasonable excuse for the more than 12-year delay in proceeding inthe matter (see Geraghty v Elmhurst Hosp. Ctr. of N.Y. City Health & Hosps. Corp., 305AD2d 634 [2003]). However, the court improperly deemed the counterclaim dismissed nunc protunc to the one-year expiration date of the default. A dismissal for abandonment pursuant toCPLR 3215 (c) requires that some action be taken, either by one of the parties, or by the court onits own initiative, to dismiss the action. Therefore, the counterclaim remained viable until themotion court dismissed it (compare CPLR 3404; Cawthon v Cawthon, 276 AD2d661 [2000]).
Although the husband's obligations under the temporary support order terminated with thedismissal of the counterclaim, he was required to obey the temporary order while thecounterclaim was pending[FN*](see Fotiadis v Fotiadis, 18 AD3d699 [2005]), and the wife is entitled to any arrears that accrued prior to dismissal and couldenforce such obligation by seeking a money judgment (see Matter of Dyandria M. v GerardM., 278 AD2d 37 [2000]). [*2]Accordingly, a hearing isordered to determine the amount of arrears and interest the husband owes, if any, from the date ofthe temporary order of support (January 18, 1994), through June 19, 2007, the date of entry of theorder dismissing the wife's counterclaim. Concur—Lippman, P.J., Friedman, Sweeny andMoskowitz, JJ. [See 16 Misc 3d 769.]
Footnote *: We note that the husbandcontinued to make payments throughout the period, albeit in a reduced amount.