Rosenfeld v. Renika Pty. Ltd.

May 31, 2011
Versions:84 A.D.3d 703
923 N.Y.S.2d 328

Order, Supreme Court, New York County (James A. Yates, J.), entered June 11, 2010, which denied defendants’ motion to dismiss the complaint with prejudice as moot in light of plaintiffs’ notice of voluntary discontinuance without prejudice, unanimously reversed, on the law, with costs and the motion granted. The Clerk is directed to enter judgment in defendants’ favor dismissing the complaint.

Plaintiffs’ notice of voluntary discontinuance was untimely under CPLR 3217 (a), and was apparently served to avoid an adverse decision on the pending motion to dismiss the complaint with prejudice (see McMahan v McMahan, 62 AD3d 619, 620 [2009]; Citidress II Corp. v Hinshaw & Culbertson LLP, 59 AD3d 210, 211 [2009]; NBN Broadcasting v Sheridan Broadcasting Networks, 240 AD2d 319 [1997]). Concur —Mazzarelli, J.P., Friedman, Catterson, Manzanet-Daniels and Román, JJ.