GONZALEZ v. KAYE (2009)

Supreme Court, Appellate Division, First Department, New York.

Daniel GONZALEZ, Plaintiff-Respondent, v. Eugenia KAYE, Defendant-Appellant.

Decided: January 29, 2009

SAXE, J.P., FRIEDMAN, NARDELLI, SWEENY, DeGRASSE, JJ.

Emery Celli Brinckerhoff & Abady LLP, New York (O. Andrew F. Wilson of counsel), for appellant. Scott A. Korenbaum, New York, for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered May 8, 2008, which, inter alia, granted plaintiff's motion to voluntarily discontinue the action, unanimously affirmed, with costs.

Defendant claims no prejudice arising from the discontinuance of the action (see Burnham Serv. Corp. v. National Council on Compensation Ins., 288 A.D.2d 31, 32-33, 732 N.Y.S.2d 223 [2001] ). She contends that plaintiff sought the discontinuance to avoid an adverse determination on defendant's motion for summary judgment (see e.g. Matter of Baltia Air Lines v. CIBC Oppenheimer Corp., 273 A.D.2d 55, 57, 709 N.Y.S.2d 54 [2000], lv. denied 95 N.Y.2d 767, 719 N.Y.S.2d 647, 742 N.E.2d 123 [2000] ). However, the record reflects that plaintiff sought a discontinuance on several occasions before defendant made her motion. Moreover, we cannot conclude that defendant would have prevailed on the motion, since, although she sought summary judgment on the merits, discovery was not complete and no depositions had been taken.

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