Opinion
2014-04-24
Maria A. KARPOV, Plaintiff–Appellant, v. Andrei SHIRYAEV, Defendant–Respondent.
Katsandonis, P.C., New York (John Katsandonis of counsel), for appellant. Andrei Shiryaev, respondent pro se.
Katsandonis, P.C., New York (John Katsandonis of counsel), for appellant. Andrei Shiryaev, respondent pro se.
Order, Supreme Court, New York County (Steven E. Liebman, Special Referee), entered October 24, 2012, which denied plaintiff's application for a judgment of divorce upon the ground of constructive abandonment, and dismissed the action, unanimously reversed, on the law, without costs, the action reinstated, and the matter remanded to the trial court for an inquest on grounds, pursuant to the parties' November 6, 2009 stipulation, and for further proceedings as may be necessary.
Plaintiff commenced this divorce action on the ground of constructive abandonment in July 2009. In a so-ordered stipulation entered into at a November 6, 2009 preliminary conference, the parties, each represented by counsel, agreed that defendant would assert a counterclaim for divorce on the ground of constructive abandonment, and plaintiff withdrew her claim. On August 1, 2011, the outstanding financial matters were referred to a special referee to hear and determine. The parties then stipulated that the Referee would also hear and determine the issue of grounds, pursuant to the November 6, 2009 stipulation. However, at the hearing, on February 21, 2012, defendant made an application to withdraw his counterclaim, and, over plaintiff's objection, the Referee granted the application, leaving plaintiff without a cause of action for divorce. The Referee then granted plaintiff's application to reinstate her claim for divorce. Although the Referee stated that he was permitting plaintiff to proceed by inquest, instead he conducted a full trial on grounds, at which defendant was permitted to interpose opposition. The Referee denied the divorce.
The Referee exceeded his authority when he permitted defendant to withdraw his counterclaim for constructive abandonment, and conducted a fully contested trial on plaintiff's previously-withdrawn claim. The reference by the court, as thereafter expanded by the parties' stipulation, did not give the Referee authority to set aside any part of the parties' November 6, 2009 stipulation (CPLR 4311; K ucherovsky v. Excel Med. & Diagnostic, P.C., 93 A.D.3d 531, 940 N.Y.S.2d 594 [1st Dept.2012] ). By clear and unambiguous terms, defendant waived his right to withdraw his counterclaim ( see Tutt v. Tutt, 61 A.D.3d 967, 878 N.Y.S.2d 760 [2d Dept.2009] ). Even if the Referee had the authority to set aside the stipulation, no legal basis whatsoever was set forth justifying setting it aside ( see Starayeva v. Starayev, 50 A.D.3d 354, 858 N.Y.S.2d 88 [1st Dept.2008] ).
We therefore remand this matter to the trial court to conduct an inquest on defendant's counterclaim. Should defendant violate the November 6, 2009 stipulation, we leave it to the trial court to fashion an appropriate remedy for defendant's noncompliance. GONZALEZ, P.J., MAZZARELLI, RENWICK, FEINMAN, GISCHE, JJ., concur.