Opinion
14/3166
04-04-2016
Joyce B. Dean, Plaintiff, v. David F. Dean, MD., Defendant.
Stuart L. Levison, Esq. Attorney for Plaintiff Rochester, New York Joan de R. O'Bryne, Esq. Attorney for Defendant Rochester, New York
Stuart L. Levison, Esq. Attorney for Plaintiff Rochester, New York Joan de R. O'Bryne, Esq. Attorney for Defendant Rochester, New York Richard A. Dollinger, J.
In this divorce action, it appears the Texas two-step, a country version of what New Yorkers might call a polka, has sashayed into the New York courts. But, a continuing spat over procedural issues makes it difficult to determine the "leader" or the "follower" in this complicated divorce dance.
In the current application, the defendant, a New York resident in a divorce action, moves to strike an amended complain and preclude the plaintiff, who resides in Texas, from serving additional pleadings. The defendant also seeks dismissal of the pending divorce action for non-compliance with the court rules. This matter has been pending before the court for more than a year. The plaintiff suffered a series of medical difficulties, resulting in competency-related proceedings in Texas. The plaintiff's medical difficulties have raised issues regarding her competence to bring and sustain this action and engendered allegations of undue influence over the plaintiff by relatives and others in Texas. None of these objections have been resolved before this court.
The matter has been hotly contested, as perhaps befits any instance in which a remote plaintiff, residing deep in the heart of Texas, commences a New York divorce action. The defendant originally brought third-party actions against the plaintiff and her counsel, alleging a series of improper and unethical actions. This court, after motion practice, obtained withdrawal of those claims and, after a series of additional procedural steps, allowed the plaintiff to submit an amended complaint.
In response to the court's decision, the plaintiff did serve an amended complaint albeit beyond the deadline given by this court. In addition, the complaint lacked the necessary signature by counsel required by the rules of the courts. Now, the defendant, seeking perhaps to re-assert the role of the "leader" in this dance, moves to dismiss the verified complaint because of lack of compliance with the prior court order and the court rules. Parenthetically, the two attorneys in this matter are among this community's best known, longstanding divorce counsel and know each other well. In short, this action is not their "first time to the (divorce) party" on behalf of their clients and both of them know all the steps in this dance, perhaps even better than the Court.
The rules of the courts require that any pleadings in this matrimonial action be signed by the plaintiff's attorney. 22 NYCRR § 202.16 (e); see Hunt v. Hunt, 273 AD2d 875 (4th Dept. 2000). The rules also permit the attorney, without leave of the court, to correct this omission if it is corrected promptly "after being called to the attention of the attorney." The New York courts have required that a court permit the offending attorney to correct this deficiency through the "simple addition of a signature" before dismissing any action. Matter of Fifield v. Whiting, 118 AD3d 1072 (3rd Dept. 2014). The rules further permit the court, if good cause is shown, to decline to strike the pleading and instead impose other sanctions. Matter of Dakota SS. (Jessica SS.), 68 AD3d 1462 (3rd Dept. 2009). Other courts have permitted this defect to be "cured" after an application to dismiss the pleading is aired. J.D. v. P.D., 13 Misc 3d 1238 (A) (Sup. Ct. New York Cty. 2006).
The purpose of the signature provision in the court rules is to ensure that pleadings are not frivolous or, in this instance, that the "initiating pleading" is not "obtained through illegal conduct." 22 NYCRR § 130-1.1A (b). In this case, the plaintiff's amended verified complaint is signed by the plaintiff and her signature is notarized in Texas. However, her local attorney did not sign the complaint, although his name and address are labeled on the amended verified complaint. Importantly, as the plaintiff's attorney notes, he did sign the original complaint and all other submissions to the court in this matter. In that respect, the attorney's signature on the original complaint attests to the bona fides of the allegations for divorce, which are the crux of this pending matter. Having attested to the merits of the original divorce complaint, it seems an exaltation of form over substance to now contend that the lack of the attorney's signature on amended complaint calls into question the non-frivolous nature of the original divorce complaint. CPLR 2101(f) allows this Court to disregard a "defect in the form of a paper" if "a substantial right of a party is not prejudiced." CPLR 2101(f). There is no evidence that the defendant — or his counsel — was confused or prejudiced by this error. Matter of Green v. Tierney, 59 AD3d 900 (3d Dept 2009); Estates of Hallet's Cove Homeowners Assoc. Inc. v Fakir, 2015 NY Slip Op 31842(U), p. 4 (Sup.Ct. Queens Cty 2015)(no showing of prejudice resulting from lack of signature).Despite the lack of prejudice, the court nonetheless finds the plaintiff's non-compliance with these rules disconcerting. The lack of a signature by the attorney as certifying the non-frivolous nature of the allegations on this amended complaint is particularly noteworthy because this case has already weathered allegations, through a third-party complaint, that the plaintiff's attorney and the plaintiff's family concocted this divorce action in New York when the plaintiff was incompetent in Texas. The court has already dealt with those allegations, which resulted in the withdrawal of the third-party complaint. As a result of that prior motion practice, this court is satisfied that the amended verified pleading, in this matter, was not obtained through illegal conduct or constitutes frivolous conduct, even though the attorney signature is lacking on the amended verified complaint. For these reasons, this court will permit the plaintiff's attorney to sign the amended verified complaint and deliver the signed document to the defendant's attorney within 10 days after service of the entered order, subject to the further conditions of this order.
For a second objection, this court signed an order permitting the plaintiff to re-file the amended complaint 20 days after service of the prior court order. The prior order was served by mail from the office of the plaintiff's attorney on November 20, 2015, and actually received by the defendant's counsel on November 21. On December 22, 2015, the plaintiff's counsel mailed the amended verified complaint to the defendant's attorney and it was received, according to the defendant's attorney, on December 28, 2015. In the defendant's view, the amended pleading was served 32 days after the service of the original order and beyond the 20-day limit contained in the prior court order.
First, this court needs to determine the exact extent of any delay in serving this pleading. CPLR 2103 (b) (2) provides that if the pleading is mailed by the defendant's attorney, the service is complete upon mailing, not receipt. Id. See also Simon v Usher, 17 NY3d 625 (2011) Furthermore, the CPLR provides a five-day period of time, measured from service, shall be added to the prescribed period if the service is by mail, as occurred in this case. CPLR 2103 (b) (2). Therefore, the "service date" for the original order, was actually, by operation of CPLR 2103 (b) (2), November 25, 2015, as the service is not considered complete, pursuant to this section, for five days after its postmark. In addition, the amended complaint was actually served by the plaintiff on December 22, 2015, when it was mailed and postmarked by the plaintiff's counsel. Therefore, the amended complaint was actually served 27 days after the service of the order rather than the 20 days required by the court order.
This court notes that the application of CPLR 2103 (b) (2) is somewhat unusual because the party obligated to serve the amended complaint was the party that served the order. Usually, the five-day tacking period applies to the party who is obligated to respond to the served pleading. In this instance, the party that might benefit from the five-day tacking period is the party who served the original order and was required to serve the pleading within the 20-day period. However, this court cannot find any language in CPLR 2103 (b) (2) that would prohibit this plaintiff from benefitting from the five-day allowance to comply with the entered court order. The language simply adds five days to "prescribed period," which, in this case, was the deadline for the plaintiff to file the amended complaint.
Despite the tacking period, the plaintiff's counsel acknowledges that the amended complaint was served at least seven days after the court-imposed deadline. The attorney explains that one of his employees misplaced the court order and failed to diary the service date for the amended complaint. Upon discovering the delay, the attorney terminated the employee for failing to properly serve the amended order. In this court's view, this employee conduct, occasioning the delay, was a form of law office failure sufficient to excuse the non-compliance with the court-imposed deadline. Terrapin Indus., LLC v Bank of NY, 2016 NY Slip Op 01905 (1st Dept. 2016) (when delay in responding was due to clerical oversight, responding party suffered no prejudice and there is no evidence of willfulness, defendant established a reasonable excuse for its delay).
This court does not ignore that plaintiff's lack of technical compliance with its earlier order. Simply put, the service was tardy and the certification unsigned. These defects in pleading compliance seem to reflect a casual approach to this already complex litigation, out of step with its contentiousness. This matter has been controversial and plaintiff's counsel seems to have ignored the strong sentiments and watchful eye of the defendant in taking a somewhat leisurely approach to the timing and pleading rules in this matter. Nonetheless, this court declines to strike this pleading in a divorce action that has been pending for more than a year and which deserves a determination on the merits. The Legislature and the New York courts prefer matters resolved on their merits. As evidence of that determination, both CPLR 2101(f) and CPLR 3012 (d), read in combination, give this Court leeway to allow corrections of pleadings and permit this court to either extend the time to plead or compel the defendant to accept this pleading on terms that are just.
In this court's view, the one-week delay in filing the amended verified complaint is excusable within the rules and laws of this state. The court notes that there is not an ounce of prejudice claimed by the defendant: there is no delay that disadvantages him, there is no claim of additional expense or loss of witness or any substantive consequence to this later-than-ordered filing. In the absence of prejudice and in view of the need to resolve this matter on the merits - either in favor of a judgment of divorce or dismissal for jurisdictional or other reasons - this court will compel the defendant to accept the amended verified pleading. The court also imposes the following sanctions on the plaintiff as a condition of such order:
(A) the plaintiff shall pay the defendant's counsel $750 in attorneys fees and the motion fee for this application within 10 days of the entry of this court's order. 22 NYCRR § 130-1.1 (d) (court may award sanctions upon the court's own initiative, after a reasonable opportunity to be heard);
(B) the plaintiff shall file a certified amended verified pleading, in accordance with the court rules, within 10 days after the entry of an order from this decision or, upon non-compliance this matter shall be dismissed without further action by this court.
This decision resolves the current issued before the court. All others are reserved to the time of trial or subsequent motion practice.
The court is calling this dance henceforth. The case needs to promenade to trial with a stepped up 4/4 pace. The parties need to strap on their boots, adjust their 10-gallon hats and move forward — giddy-up.
SUBMIT ORDER ON NOTICE DATED: April 4, 2016 ____________________________ Richard A. Dollinger Acting Supreme Court Justice