Opinion
2002-05804
Argued June 6, 2003.
August 11, 2003.
In an action for a divorce and ancillary relief, the husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, J.), dated June 14, 2002, as, in effect, upon granting renewal, adhered to its determination in an order dated February 26, 2002, sua sponte vacating a stipulation discontinuing the action.
Doniger Engstrand, LLP, Islandia, N.Y. (Sean J. Conway of counsel), for appellant.
John Ray, Miller Place, N.Y., for respondent.
Before: FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs
A voluntary discontinuance may be accomplished by a written stipulation signed by the attorneys of record for all parties "provided * * * that no person not a party has an interest in the subject matter of the action" ( see CPLR 3217[a]; Tucker v. Tucker, 55 N.Y.2d 378, 383-384). The stipulation entered into by the parties in this case had the effect of divesting the Supreme Court of jurisdiction, since the action was being discontinued, but at the same time conditioned the discontinuance upon further proceedings before the Supreme Court with respect to, inter alia, child support. Since neither of the parties contemplated the implications of the discontinuance on the further proceedings, there was no true meeting of the minds ( see Matter of Gould v. Board of Educ. Of Sewanhaka Cent. High School Dist., 81 N.Y.2d 446, 453; Mahon v. New York City Health Hosps. Corp., 303 A.D.2d 125; cf. Symphony Space v. Pergola Props., 88 N.Y.2d 466, 484).
The Supreme Court properly ordered the husband to pay outstanding support arrears, with appropriate credits, pursuant to the pendente lite support order ( see Zaremba v. Zaremba, 237 A.D.2d 351, 352).
The husband's remaining contentions are without merit.
SANTUCCI, J.P., SCHMIDT, COZIER and RIVERA, JJ., concur.