Practice point: Plaintiff commenced this divorce action on the ground of constructive
abandonment, and, at a preliminary conference, the parties, each represented
by counsel, stipulated that defendant would assert a counterclaim for
divorce on the ground of constructive abandonment, and plaintiff
withdrew her claim. 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 their preliminary conference stipulation. However, at
the hearing, 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 Appellate Division determined that 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fully contested trial on plaintiff's previously-withdrawn claim.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
referral by the court, as thereafter expanded by the parties'
stipulation, did not give the referee authority to set aside any part of
the parties' stipulation, pursuant to CPLR 4311; By clear and unambiguous terms, defendant had waived his right to withdraw his counterclaim.
Student note: Even if the Referee had the authority to set aside the
stipulation, there was no legal basis whatsoever was set forth justifying setting
it aside.
Case: Karpov v. Shiryaev, NY Slip Op 02848 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: A cause of action for civil conspiracy.
