Justice Eric Prus
Defendant husband sought to vacate wife’s notice of discontinuance arguing she waived her right to discontinue the matrimonial action. He also claimed wife should be barred from discontinuing the action as a matter of equity, and under principles of equitable estoppel, claiming he would be prejudiced by the discontinuance. At a preliminary conference the parties resolved issues of custody and equitable distribution of the marital home, agreeing to sell it immediately. In reliance on same, husband agreed to vacate the marital home. To date, wife has not cooperated with the sale of the house, hired new attorneys, and served husband with a notice of discontinuance. The court noted while no pleadings were yet served, neither a complaint, nor an answer, it ruled wife waived her right to discontinue the action by her conduct. It also stated it would be fundamentally unfair to permit wife to discontinue the suit, finding she knowingly relinquished her right for discontinuance when she filed the note of issue over a year after the action was started indicating the case was ready for trial. Further, the various agreements between the parties resolving aspects of the action constituted a waiver. Thus, the court granted husband’s motion.
