107 Misc. 2d 215 | N.Y. Sup. Ct. | 1980
OPINION OF THE COURT
This is a motion to dismiss an amended complaint in an action for divorce on the ground that there is another action pending for the same cause. The basis for the application is the prior commencement of an action for divorce by the defendant against the plaintiff. The movant essentially contends that the exclusive remedy of the plaintiff to assert her own cause of matrimonial action is by way of a counterclaim in the prior divorce action brought by the defendant.
The motion is denied. The prior commencement by the defendant husband of his own action for divorce against his wife does not constitute a bar to the wife bringing her own subsequent and independent matrimonial action. The defendant’s contention that the wife was limited to asserting a counterclaim in his action is without merit. The rule in New York is that all counterclaims are permissive. Withholding asserting a counterclaim does not forfeit the right to bring a separate suit upon the cause of action. (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR, C3019:2, p 216.) Of course, while the significance of such a rule may be enhanced by the recent passage of the new statute enacted by the Legislature