New York Downtown Hosp. v Terry

New York Downtown Hosp. v Terry 2011 NY Slip Op 00253 Decided on January 18, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 18, 2011
Gonzalez, P.J., Mazzarelli, Moskowitz, Acosta, RomÁn, JJ.
4062 109099/09

[*1]New York Downtown Hospital, et al., Plaintiffs-Appellants,

v

Lorenzo Terry, et al., Defendants-Respondents.




Proskauer Rose LLP, New York (Charles S. Sims of counsel),
for appellants.
Gallet Dreyer & Berkey, LLP, New York (David T. Azrin of
counsel), for respondents.

Amended order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 25, 2010, which, to the extent appealed from, conditioned the grant of plaintiffs' application for a voluntary discontinuance of their action on their payment of the sum of $10,000 to defendants, unanimously modified, in the exercise of discretion, to the extent of striking the payment requirement, and otherwise affirmed, without costs.

Contrary to plaintiffs' assertions, it is within a court's discretion to condition an application for a voluntary discontinuance made pursuant to CPLR 3217(b) upon the movant paying the adverse party's legal fees, costs, and disbursements (see Beigel v Cohen, 158 AD2d 339 [1990]). However, under the circumstances presented, the court should have allowed plaintiffs
to discontinue their libel claims without any condition (see Townhouse Co., LLC v Peters, 17 Misc 3d 133(A) [2007]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 18, 2011

CLERK