| Rossignol v Rossignol |
| 2011 NY Slip Op 01560 [82 AD3d 1335] |
| March 3, 2011 |
| Appellate Division, Third Department |
| Daniel F. Rossignol, Individually and as a Member of dr2 &Company, LLC, Suing in the Right of dr2 & Company, LLC, Appellant, v Dolores M. Rossignolet al., Respondents. (And Another Related Action.) |
—[*1] Dalton Law Firm, L.L.C., Saratoga Springs (Alisa M. Dalton of counsel), forrespondents.
Rose, J. Appeal from an order of the Supreme Court (Williams, J.), entered December 7,2009 in Saratoga County, which granted defendants' motion for summary judgment dismissingthe complaint.
After 24 years of marriage, defendant Dolores M. Rossignol (hereinafter the wife)commenced an action for divorce against plaintiff (hereinafter the husband). For purposes ofequitable distribution, their major asset is dr2 & Company, LLC (hereinafter the LLC), aMcDonald's restaurant operating company formed by the parties during their marriage. Duringthe course of the divorce action, Supreme Court entered an order restraining the husband fromaccessing any funds in the marital or business banking accounts, fixed the date ofcommencement of the action as the valuation date of the LLC and denied the husband's requestto liquidate and sell the LLC. In response, the husband commenced an action for dissolution ofthe LLC under the terms of the operating agreement and the Limited Liability Company Law.[*2]On the consent of the parties, Supreme Court ordered theactions to be "joined and consolidated for trial," and the wife then moved to dismiss the secondaction on the ground that, among other things, there was another action pending between thesame parties and involving the same issues. Supreme Court granted the motion pursuant to CPLR3211 (a) (4) without prejudice to recommencement if any issues remained beyond the reach ofthe divorce action. The husband appeals.
Initially, we reject the husband's contention that dismissal of the second action is precludedby the consolidation. A true, organic consolidation did not occur here. Rather, Supreme Courtjoined the actions for trial, keeping the individual actions intact and subject to separate resolution(see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLRC602:2; see e.g. Matter of Blanchard v Blanchard, 304 AD2d 1048, 1048 [2003];Rielly v Naftal, 300 AD2d 811, 812 [2002]).
Next, the husband contends that the second action does not seek substantially the same reliefas the divorce action. Again, we must disagree. Pursuant to Domestic Relations Law §234, Supreme Court is empowered to determine all issues with respect to the property owned bythe parties (see Ripp v Ripp, 38 AD2d 65, 67 [1971], affd for reasons statedbelow 32 NY2d 755 [1973]). Indeed, "[t]he courts and the parties should ordinarily be ableto plan for the resolution of all issues relating to the marriage relationship in the single[matrimonial] action" (Boronow v Boronow, 71 NY2d 284, 290 [1988]). Inasmuch as thehusband and wife are the only owners of the LLC, and both are parties to the divorce action, wesee no reason why any issues should be left for resolution after equitable distribution of theparties' property. Given the availability of complete relief pursuant to Domestic Relations Law§ 234 and our public policy of resolving equitable distribution within the context of adivorce action (see O'Connell vCorcoran, 1 NY3d 179, 185 [2003]; St. John v St. John, 201 AD2d 552,552-553 [1994]; Karasik v Karasik, 172 AD2d 294, 294 [1991]), we conclude thatdismissal of the second action was within Supreme Court's broad discretion pursuant to CPLR3211 (a) (4) (see Whitney v Whitney, 57 NY2d 731, 732 [1982]; Mann v Malasky, 41 AD3d 1136,1137-1138 [2007]; Matter of Aaron, 232 AD2d 758, 759-760 [1996]).
Peters, J.P., Spain, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.