Parraguirre v. 27th St. Holding, LLC

Feb 27, 2007
Versions:37 A.D.3d 793
831 N.Y.S.2d 460

In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Queens County (Grays, J.), dated December 14, 2005, which granted the plaintiff‘s motion pursuant to CPLR 3217 (b) to voluntarily discontinue the action without prejudice.

Ordered that the order is affirmed, with costs.

The determination of a motion for leave to voluntarily discontinue an action without prejudice pursuant to CPLR 3217 (b) rests within the sound discretion of the court (see Tucker v Tucker, 55 NY2d 378, 383 [1982]). In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted (see Mathias v Daily News, 301 AD2d 503 [2003]; Urbonowicz v Yarinsky, 290 AD2d 922, 923 [2002]; Great W. Bank v Terio, 200 AD2d 608 [1994]). Additionally, it is within the court‘s discretion to allow a plaintiff to voluntarily discontinue an action in one venue to enable him or her to commence a second action for the same relief in another venue (see Carter v Howland Hook Hous. Co., Inc., 19 AD3d 146 [2005]; Urbonowicz v Yarinsky, supra; Ruderman v Brunn, 65 AD2d 771 [1978]). As there was no showing of prejudice to the appellant, the Supreme Court providently exercised its discretion in granting the plaintiff‘s motion (see Citibank v Nagrotsky, 239 AD2d 456 [1997]). Schmidt, J.P., Krausman, Goldstein, Covello and Angiolillo, JJ., concur.