New York Law Review

Tag: discontinuance

  • Brody v. Brody, 58 N.Y.2d 807 (1982): Discontinuance of Counterclaim to Invoke Equitable Distribution Law

    Brody v. Brody, 58 N.Y.2d 807 (1982)

    A defendant in a divorce action commenced before the effective date of the Equitable Distribution Law may discontinue a counterclaim filed after that date to commence a separate action and obtain the law’s benefits, absent prejudice to the plaintiff.

    Summary

    This case addresses whether a wife could discontinue her divorce counterclaim to take advantage of New York’s Equitable Distribution Law. The husband started the divorce action just before the law’s effective date, and the wife filed a counterclaim afterward. The court held that the wife could discontinue her counterclaim to file a separate action under the new law because the husband’s initial action was a tactical move to avoid equitable distribution, and discontinuance would not substantially prejudice the husband.

    Facts

    The husband initiated a divorce action on July 17, 1980, two days before New York’s Equitable Distribution Law took effect. The wife responded on August 7, 1980, filing an answer and a counterclaim for divorce. The wife then sought to discontinue her counterclaim so she could start a separate action and benefit from the Equitable Distribution Law.

    Procedural History

    The Supreme Court granted the wife’s motion to discontinue her counterclaim. The Appellate Division affirmed this decision, noting the husband’s apparent attempt to circumvent the new law. The New York Court of Appeals then reviewed the case.

    Issue(s)

    Whether a wife who files a divorce counterclaim after the effective date of the Equitable Distribution Law, in an action commenced by the husband before that date, can discontinue the counterclaim to initiate a separate action under the new law.

    Holding

    Yes, because the husband initiated the action just before the law’s effective date in what appeared to be a tactical maneuver, and discontinuance would not substantially prejudice the husband.

    Court’s Reasoning

    The Court of Appeals affirmed the lower courts’ decisions. The court emphasized that CPLR 3019 allows a party to assert a claim as either a counterclaim or in a separate action. The court distinguished this case from prior rulings (Valladares, Tucker, Zuckerman, Pollack) where the party seeking to apply the Equitable Distribution Law had either commenced the action or filed their initial response before the law’s effective date. Here, the husband’s strategic timing in filing the initial action was a key factor. The court noted that the Appellate Division correctly identified the husband’s action as “an obvious effort [by plaintiff] to preclude defendant from the benefits of equitable distribution.” The court held that absent prejudice to the plaintiff or the accrual of substantial rights, the wife should be allowed to pursue her claim under the Equitable Distribution Law. The court determined that denying the wife the ability to discontinue her claim and refile would be elevating form over substance. The court weighed the equities and determined that allowing the wife access to the new law, under these specific circumstances, was the correct outcome. The court emphasized that its holding was based on the specific facts of the case and did not create a blanket rule allowing discontinuance in all such situations.

  • Bardowitz v. State, 22 N.Y.2d 526 (1968): Recovery of Legal Fees After Discontinued Eminent Domain Proceeding

    22 N.Y.2d 526 (1968)

    When the State discontinues an eminent domain proceeding, the Court of Claims has the discretion to award attorneys’ fees and legal expenses to the landowner, even though the appropriated property interest may be noncompensable.

    Summary

    Bardowitz and Terrace, property owners, sought damages from the State after the State attempted to appropriate negative easements on their land to restrict billboards. The State later moved to dismiss the claims following Schulman v. People, which held that the Superintendent of Public Works lacked the authority for such condemnation. The Court of Claims dismissed the claims, leading to new claims for damages due to trespass and cloud on title, including legal fees. The Court of Appeals held that while the State’s unauthorized appropriation didn’t warrant damages and wasn’t slander of title absent malice, the Court of Claims has discretion to award legal fees incurred during the discontinued appropriation proceedings.

    Facts

    • Bardowitz and Terrace owned property in Sullivan County abutting Route 17 (the Quickway).
    • In 1958 and 1959, the Superintendent of Public Works filed appropriation maps to acquire negative easements on the properties to prevent billboards.
    • The property owners filed claims against the state for damages in June 1960.
    • In July 1961, the Court of Appeals decided Schulman v. People, holding the Superintendent lacked authority to condemn negative easements for advertising restrictions under Section 30 of the Highway Law.
    • Following Schulman, the State moved to dismiss Bardowitz and Terrace’s claims, which the Court of Claims granted without prejudice.
    • Bardowitz and Terrace filed new claims seeking damages for trespass, cloud on title, and legal fees incurred during the appropriation proceedings.
    • There were no signs on the properties before the initial appropriation attempt, nor were any erected in the six years following the Schulman decision.

    Procedural History

    • The Court of Claims dismissed the claims filed by Bardowitz and Terrace.
    • The Appellate Division affirmed the judgments of the Court of Claims.
    • The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the unauthorized appropriation of negative easements by the State constitutes a compensable taking of private property.
    2. Whether the State is liable for damages based on trespass or slander of title due to the unauthorized filing of appropriation maps.
    3. Whether the Court of Claims has the discretion to award legal expenses and counsel fees to landowners when the State discontinues eminent domain proceedings.

    Holding

    1. No, because the property interests seized are noncompensable, as the State could have achieved the same restriction through a valid exercise of its police power without compensation.
    2. No, because the mere filing of appropriation maps, without malice, does not constitute slander of title.
    3. Yes, because the Court of Claims has discretion to award attorneys’ fees and legal expenses when the State seeks to discontinue the exercise of eminent domain.

    Court’s Reasoning

    The Court reasoned that even though the Superintendent of Public Works lacked the statutory authority to appropriate the negative easements, this unauthorized action did not automatically create liability for the State. The critical question is whether a compensable property interest was taken. Since the State could have prohibited billboards on the land through a valid exercise of its police power (as in New York State Thruway Authority v. Ashley Motor Court) without paying compensation, the temporary seizure of the negative easements was also noncompensable.

    The Court distinguished this situation from cases where a government official seizes property that the State could only acquire with compensation, such as a fee simple interest. Further, the Court found no evidence of malice in the filing of the appropriation maps, which is a necessary element of a slander of title claim. The Superintendent acted in good faith, reasonably believing he had the authority. “The record establishes that the Superintendent of Public Works acted in good faith and in the belief that he was authorized by section 30 of the Highway Law to appropriate these negative easements.”

    However, the Court recognized the inherent fairness of reimbursing landowners for legal expenses incurred during discontinued eminent domain proceedings. Citing Matter of Waverly Water Works Co., the Court stated, “if the State seeks to discontinue or abandon a condemnation proceeding, it may be required, in the court’s discretion, to pay to the landowner ‘full indemnity for the expenses to which he was subjected.’” The Court noted that while Section 27 of the Court of Claims Act generally prohibits awarding attorneys’ fees, this should not prevent the court from awarding legal expenses upon discontinuance of eminent domain proceedings. The Court remanded the cases to the Court of Claims to determine whether an award of legal fees was warranted in these circumstances.