Parraguirre v 27th St. Holding, LLC

Parraguirre v 27th St. Holding, LLC 2007 NY Slip Op 01705 [37 AD3d 793] February 27, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

Guillermo Parraguirre, Respondent,
v
27th St. Holding, LLC, et al., Defendants and Third-Party Plaintiffs. Fordham Road Concrete Corp., Third-Party Defendant-Appellant.

—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Debra A. Adler of counsel), for appellant.

Pena & Kahn, PLLC, Bronx, N.Y. (Steven L. Kahn of counsel), for respondent.

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 [*2]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.