Kaplan v Village of Ossining

Kaplan v Village of Ossining 2006 NY Slip Op 10028 [35 AD3d 816] December 26, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Adam Kaplan et al., Respondents,
v
Village of Ossining et al., Appellants.

—[*1]

In an action, inter alia, to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered November 18, 2005, as denied that branch of their motion which was for summary judgment dismissing the third cause of action and granted the plaintiffs' cross motion pursuant to CPLR 3217 (b) to voluntarily discontinue that cause of action without prejudice.

Ordered that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, that branch of the motion which was for summary judgment dismissing the third cause of action is granted, and the cross motion to voluntarily discontinue the third cause of action without prejudice is denied.

The Supreme Court improvidently exercised its discretion in denying that branch of the defendants' motion which was for summary judgment dismissing the third cause of action (see CPLR 3212 [e]) and granting the plaintiffs' cross motion to voluntarily discontinue that cause of action without prejudice (see CPLR 3217 [b]). The record supports a finding that the plaintiffs were merely attempting to circumvent the effect of a preceding conditional order of preclusion (see Venture I, Inc. v Voutsinas, 8 AD3d 475 [2004]). "A plaintiff should not be permitted to discontinue an action without prejudice for the purpose of avoiding an adverse order of the court" (Casey v Custom Crushing & Materials, 309 AD2d 726, 727 [2003]; see Schachter v Royal Ins. Co. of Am., 21 AD3d 1024, 1025 [2005]; cf. Mathias v Daily News, 301 AD2d 503, 504 [2003]; St. Pierre v Ostreich, 123 AD2d 857 [1986]). Crane, J.P., Krausman, Goldstein and Spolzino, JJ., concur.