Town of Huntington v Naughton

[*1] Town of Huntington v Naughton 2010 NY Slip Op 51202(U) [28 Misc 3d 1207(A)] Decided on June 25, 2010 Supreme Court, Suffolk County Mayer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 25, 2010
Supreme Court, Suffolk County

Town of Huntington, and FRANK PETRONE, in his capacity as TOWN SUPERVISOR, Plaintiff(s),

against

William Naughton, AS SUPERINTENDENT OF HIGHWAYS OF THE TOWN OF HUNTINGTON; JOSEPH M. FIORE; CHRISTOPHER M. KOULERMOS; JOHN A. SPATOLA; DAVIEN S. MOTLEY; PAUL J. WOHLRAB; ANDREW F. KOEHLER; SHALOM L. JONES; DOMINICK GAGLIANO; AND LOCAL 342 LONG ISLAND PUBLIC SERVICE EMPLOYEES UMD-ILA AFL-CIO; Defendant(s)



4884-2010



Cullen and Dykman, LLP

Attorneys for Plaintiff

100 Quentin Roosevelt Boulevard

Garden City, New York 11530-4850

Meyer, Suozzi, English & Klein Attorneys for Deft Naughton

990 Stewart Avenue

Garden City, New York 11530

Goldstein, Rubinton, Goldstein & DiFazio

Attorneys for Defendants

18 West Carver Street

Huntington, New York 11743

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Order to Show Cause by the plaintiff, signed March 4, 2010 (Pastoressa, J.), and supporting papers, including Memorandum of Law; (2) Affirmation in Opposition by the defendant Naughton, dated March 16, 2010, and supporting papers, including Memorandum of Law; (3) Affirmation in response by the defendants Fiore, at al., dated March 17, 2010, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the plaintiffs' motion (001) for an order discontinuing this action pursuant to CPLR §3217(b) is hereby granted and the case is hereby disposed; and it is further

ORDERED that plaintiffs' counsel shall promptly serve a copy of this Order upon counsel for the defendant via first class mail, and shall promptly thereafter file the affidavit of such serve with the Suffolk County Clerk.

The plaintiffs' complaint, which sounds in declaratory and injunctive relief, essentially seeks to enjoin defendant William Naughton, in his capacity as Superintendent of Highways, from hiring the individual defendants and to enjoin those individuals from performing work on behalf of the plaintiff Town. The plaintiffs now contend that defendant Naughton effectively confirmed the termination of those individuals by letters dated Fenruary 8, 2010, thereby rendering the claims in the complaint resolved. All defendants, except defendant Naughton, executed a Stipulation of Discontinuance, dated February 16, 2010, and they have no opposition to the plaintiff's motion. Defendant Naughton, however, refused to sign the Stipulation and opposes the plaintiffs' application for voluntary discontinuance primarily on the grounds that Naughton has interposed an answer with counterclaims against the plaintiffs. There are no cross-claims by Naughton against any of the other defendants and an answer was not interposed by Naughton until after the plaintiffs' motion was served upon Naughton's attorneys.

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 (Expedite Video Conferencing Services, Inc. v Botello, 67 AD3d 961, 890 NYS2d 82 [2d Dept 2009]; Citibank N. A. v Nagrotsky, 239 AD2d 456, 658 NYS2d 966 [2d Dept 1997]). In the absence of [*2]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 (Mathias v Daily News, L.P., 301 AD2d 503, 752 NYS2d 896 [2d Dept 2003]). Here, defendant Naughton has failed to show any such special circumstances. It is true that one of the factors militating against discontinuance includes the imposition of one or more counterclaims (Aison v Hudson River Black River Regulating District, 279 AD2d 754, 718 NYS2d 483 [3d Dept 2001]); however, Naughton has failed to show any prejudice that would result from having to prosecute those claims in a separate action as a plaintiff. This is particularly true where, as here, the action is in its infancy, the other nine (9) co-defendants have consented to discontinuance, and Naughton has asserted no cross-claims against any of those defendants. Accordingly, the plaintiffs' motion is granted and this action is disposed.

This constitutes the Order of the Court.

Dated:June 25, 2010

Peter H. Mayer, J.S.C.