Based upon the foregoing papers, defendant Juanita Hinds (Mother) moves, by Order to Show Cause, for an order vacating the notice of discontinuance filed by plaintiff Oneil Hinds (Father) on June 19, 2009, on the grounds that said discontinuance is untimely and was improperly filed without leave of court and, in any event, should not be permitted as such discontinuance will cause both Mother and the parties' minor child substantial prejudice with respect to the custody issues currently pending before this court. The attorney for the parties' child in this action has submitted an affirmation in support of the instant motion. Father, appearing pro se, opposes such motion on the grounds that the subject discontinuance is proper pursuant to CPLR 3217 (a), neither Mother nor the parties' child will suffer prejudice as a result of the discontinuance of the action and he should not be compelled by the court to continue to litigate the matter in [*2]Supreme Court, Kings County.

Father commenced the instant action for divorce on or about May 10, 2007 by filing a summons and verified complaint in Supreme Court, Kings County. An affidavit of service subsequently was filed indicating that the verified complaint was served on May 30, 2007. On September 14, 2007, a default judgment of divorce was entered. Said judgment was vacated on January 15, 2008, and the action was restored to the contested calendar.

On February 11, 2008, the court held a preliminary conference in the action which resulted in a preliminary conference order. Pursuant to said order, the parties stipulated that the issue of fault was resolved, but the issues of custody, visitation, child support, maintenance and equitable distribution remained unresolved. A discovery schedule was set with a compliance conference to take place on March 17, 2008.

On February 26, 2008, the court issued an order establishing a temporary parenting schedule pending trial of the custody issue. Pursuant to said order, the parties' child spent Monday mornings through Thursday evenings every week with Mother in Brooklyn and the remainder of the week with Father in Suffolk County. This order has not been modified and remains in effect.

Thereafter, the parties engaged in discovery, including forensic evaluations and home studies. On May 26, 2009, the court-appointed forensic psychologist, Dr. Steven Demby, issued a 43-page report based upon his forensic evaluation of the parties and their child which included multiple interviews conducted over a six month period.

The parties appeared before the court on March 24, 2009 at which time Father was directed to file a note of issue. At said conference, the court informed the parties that at the next conference date the parties would pick a date for trial of the outstanding issues in the action. Father filed the note of issue on June 2, 2009.

On June 19, 2009, Father filed a voluntary notice of discontinuance with the court. On the same day, Father filed a custody petition with the Family Court, Suffolk County, seeking primary physical/residential custody of the parties' child and general "joint custody" of the child with Mother. At the time the petition was filed, the Family Court issued an order granting Father temporary legal custody and possession of the child pending the return date of the petition on August 18, 2009. On July 20, 2009, counsel for Mother first learned of the subject custody petition at a scheduled conference before this court. At said conference, the court directed Mother to serve upon Father a notice of inquest informing him that an inquest on the issue of custody would be held on August 19, 2009. Said notice was duly served upon Father on July 21, 2009. Mother was served with the petition by Father, in person, on July 27, 2009. Thereafter, Mother moved for an order vacating the discontinuance of the instant action.

In support of the motion, Mother contends that the notice of discontinuance filed by Father is improper and invalid pursuant to CPLR 3217(a)(1), as such provision requires that the voluntary dismissal of an action effected by a plaintiff without leave of [*3]court is limited to "any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier." Accordingly, since the notice of discontinuance at issue was filed on June 19, 2009, more than 2 years after the verified complaint was filed on May 10, 2007, such notice is subject to vacatur.

In addition, Mother argues that, in any event, Father should be estopped from discontinuing the action at this juncture due to the prejudice that will result to Mother and the parties' child by reason of such discontinuance. She contends that because the parties' have engaged in extensive discovery concerning the custody issue, and said issue was deemed trial-ready immediately prior to Father's unilateral discontinuance of the action, the parties' child will be severely prejudiced by further delay in the determination of permanent custody, particularly given that the child is about to start kindergarten, a crucial developmental and educational milestone. In addition, Mother notes that Father's discontinuance has allowed him to circumvent this court's order directing that the parties' exercise shared physical custody pursuant to the schedule mandated by the court, thereby depriving her of specific court-ordered access to the child which has been in effect since February 2008.

In opposition, Father argues that because Mother did not serve an answer and counterclaim for divorce until six weeks after the subject notice of discontinuance was filed, said discontinuance was authorized by CPLR 3217 (a)(1) which allows for voluntary discontinuances prior to the service of a responsive pleading. He also maintains that said discontinuance will cause no prejudice to inure to either mother or the parties' child as Mother retains the same rights that she had prior to the discontinuance, including the right to counterclaim for divorce, is not paying for the divorce litigation herself and the law guardian for the child may continue to serve in this capacity in the Family Court custody proceeding. Father notes that the Family Court has already conducted at least one home study and has issued temporary orders related to custody. Moreover, he contends that he should not be compelled to continue litigation in Supreme Court, Kings County, as such litigation has depleted his resources, constraining him to prosecute the action pro se. He also asserts that he has gained no advantage by the discontinuance of the instant action and simultaneous commencement of a custody proceeding in Family Court because "more than likely" this court would have modified its prior order to accommodate the child's schooling needs by placing the child at Father's residence on a full-time basis.

The attorney for the child submits an affirmation supporting Mother's motion "because . . . CPLR Sec. 3217 (a) (1), the statute applicable to the issue before the court, is clear and supports the motion." With respect to the prejudice issue, the child's attorney states that she informed Father of her status as a member of the law guardian panel in the Second Department, wherein both Kings County and Suffolk County are located, but also made clear to him that she believed that unless she received special permission from the law guardian program, she was limited to accept assignments in Kings County and could [*4]not appear in Suffolk County in her law guardian capacity. She also disputes the amount of money allegedly expended by Father with respect to law guardian fees, but acknowledges that Mother has had pro bono representation whereas Father has had to utilize his own funds throughout the course of the parties' litigation.

The court finds that the discontinuance at issue violates the requirements of CPLR 3217(a) (1) and, accordingly, said discontinuance is vacated and rendered a nullity. The plain language of section 3217 (a) (1) prescribes the time period within which to effect a voluntary discontinuance:

[A] notice of discontinuance [may be served on all parties] at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier, and filing the notice with proof of service with the clerk of the court [emphasis added].

Although a party retains the absolute and unconditional right to discontinue an action without seeking judicial permission where no pleadings have been served (see Tutt v Tutt, 61 AD3d 967, 967-968 [2009], such is not the case at bar. It is well settled that the service of a summons with notice is not a pleading for purposes of 3217(a)(1), even where the defendant has demanded service of a complaint and, accordingly, a plaintiff may utilize the statutory mechanism for voluntary discontinuance afforded by 3217(a)(1) at any time prior to the service of a complaint in the subject action (see McMahon v McMahon, 279 AD2d 346, 348 [2001]). With respect to the instant action, however, it is undisputed that Father filed a summons and verified complaint on May 10, 2007 and served same on May 30, 2007. Accordingly, pursuant to CPLR 3217(a)(1), the time for Father to serve a voluntary notice of discontinuance indisputably expired within twenty days after service of said complaint, on June 19, 2007, two years prior to Father's filing of the notice of discontinuance. Accordingly, such discontinuance is untimely under CPLR 3217 (a) (1) and is subject to vacatur by the court (see Tutt, 61 AD3d at 762 [determining that notice of discontinuance was a nullity where same was stipulated to be filed within time frame established by CPLR 3217(a)(1) but husband failed to file timely]).

Given the untimeliness of the subject discontinuance, the court notes that it need not reach the issue of whether Father should be estopped from discontinuing the action or if such discontinuance would be granted, in the court's discretion, if Father had moved for leave to discontinue, as required pursuant to CPLR 3217 (b) ["Except as provided in subdivision (a), an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper"]. However, the particular circumstances of the instant case compel the court to address the issues of prejudice which have been raised and, in part, briefed by the parties on the instant motion.

Although "courts are generally reluctant to compel a party to litigate and, in the exercise of discretion, will grant a motion for discontinuance absent compelling [*5]circumstances or particular prejudice to defendants" (DuBray v Warner Bros. Records, 236 AD2d 312, 314 [1997], in so determining the court must consider "the stage that litigation has reached; the later the stage the greater should be the court's scrutiny of the plaintiff's motives" (Kane v Kane, 163 AD2d 568, 570 [1990][reversing grant of discontinuance to husband where discontinuance was sought in "bad faith" to inconvenience wife and cause her potential financial detriment]). In addition, it is well settled that a discontinuance should not be granted where said discontinuance will allow a plaintiff to circumvent the effect of a court order in defendant's favor (see Angerame v Nissenbaum, 208 AD2d 579, 579 [1994]; see also Daley v Daley, 257 AD2d 593, 594-595 [1999][agreeing with trial court that plaintiff's tactic in discontinuing previous action in New York County and commencing new action in Suffolk County constituted forum shopping where plaintiff litigated action in New York County without any complaint for three years, evidence existed that discontinuance stemmed from displeasure with pendente lite order and commencement of new action allowed him to obtain a change of venue he would not have been able to obtain directly]; DuBray, 236 AD2d at 314 [recognizing that a motion for discontinuance should not be used to circumvent an order of the court or to enable a plaintiff to do indirectly what he or she is not permitted to do directly]; Schneider v Schneider, 32 AD2d 630, 630 [1969][reversing grant of discontinuance where "[t]he inference [was] warranted that the real reason behind plaintiff's application to discontinue [was] his desire to avoid complying with the support order of the court]").

In the custody context, the potential for prejudice resulting from a discontinuance becomes all the more poignant. As cogently stated by the Appellate Division, Third Department in Matter of Weissman v Weissman, 50 AD2d 989, 990 [1975]:

[A custody] proceeding involves more than the personal rights of the parties. It involves the appropriate custody of the child. The welfare of the child is the prime concern of the court and justified the court in denying appellant's application to discontinue the proceeding.

Given that the paramount concern in all custody matters is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; see also Matter of Larkin v White, 64 AD3d 707, 708 [2009]; Matter of Awan v Awan, 63 AD3d 733, 734 [2009]), it is unsurprising that "[t]he case law is replete with decisions espousing the principle that delay is not in the best interests of the child" and "the professional literature is in accord with this principle as well" (Matter of Lauro v Dawn M., 24 Misc 3d 684, 690 [2009][citing cases]). Indeed, such focus on delay comports with the general premise that "[a]n efficient court system should not tolerate the casual prosecution of actions and, hence, we shall not encourage the use of the discontinuance device as an adjunct of delay" (Conklin v Wilbur, 26 AD2d 666, 667 [1966]; accord Greisman v Greisman, 14 Misc 3d 409, 414 [2006] [quoting Conklin with respect to the issue of discontinuance and [*6]delay and opining that "[t]o allow plaintiff (husband), after years of litigation and evidentiary hearings as well as testimony and a 30-page opinion written by the Judicial Hearing officer which vacated the underlying (separation) agreement, to now withdraw the action to fight another day' would be a waste of judicial economy and severely prejudice defendant (wife)"] ).

Here, Father litigated before this court for more than two years, filed a note of issue and was scheduled to appear to set trial dates when he unilaterally discontinued the instant action and, on the same day, commenced a custody proceeding in Family Court, Suffolk county. Such discontinuance occurred after substantial discovery on the custody issue had been completed including forensic evaluations, home visits and the submission of a lengthy report based upon same. Concomitant to commencement of the custody proceeding, Father obtained a temporary order of physical custody which contradicted the court-ordered parenting arrangement previously directed - and never modified - by this court. Accordingly, Father was able to gain a physical custody order to his benefit, and Mother's detriment, by avoiding motion practice before this court and, instead, seeking relief from a court with little or no historical knowledge of the parties' longstanding custody litigation. Although Father is apparently confident that such relief would have been granted to him by this court, his reluctance to pursue modification of the parenting schedule before it, and the commencement of a custody proceeding by him in a new venue, effectively on the eve of trial of the custody issues by this court and without the benefit of the detailed forensic evidence gained throughout the parties' litigation, belies such claims. Rather, the court may infer that Father's motivation, at least in part, in discontinuing the instant action and commencing a custody proceeding in Family Court, Suffolk County, was to circumvent the current parenting order without seeking leave form this court for modification of same, to delay the adjudication of the custody issue and, perhaps, ultimately, to gain a custody determination more favorable to him as a result of such strategic factors.

The court, however, cannot countenance such delay and intentional circumvention of its orders, particularly where, as here, no statutory authority exists to authorize the discontinuance in question, all discovery has been completed, the case is trial-ready, and it is in the child's best interest that said trial take place expeditiously in order to resolve the outstanding custody issues and afford a measure of stability to both the parties and the child as the child begins her elementary school education.

Accordingly, pursuant to CPLR 3217 (a)(1), the subject discontinuance is vacated. The parties are directed to appear at a status conference at Part 5T, Room 580 on Monday, November 16, 2009, at which time the trial dates shall be scheduled. All orders issued in this action to date by the court shall remain in full force and effect.

The foregoing constitutes the decision and order of the court.

ENTER,

Hon. Delores J. Thomas, J. S. C.