NBN BROADCASTING INC v. SHERIDAN BROADCASTING NETWORKS INC (1997)

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

NBN BROADCASTING, INC., Plaintiff-Appellant, v. SHERIDAN BROADCASTING NETWORKS, INC., Defendant-Respondent.

Decided: June 24, 1997

Before ELLERIN, J.P., and WALLACH, NARDELLI, RUBIN and MAZZARELLI, JJ.

Peter A. Mahler, for Plaintiff-Appellant. Robert F. Brodegaard, for Defendant-Respondent.

Orders, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about December 11, 1995, which, upon plaintiff's motion for leave to discontinue the action without prejudice, discontinued the action with prejudice, unanimously affirmed, with one bill of costs. Appeal from order of the same court and Justice entered on or about October 17, 1995, denying plaintiff's motion for a preliminary injunction, unanimously dismissed as abandoned, without costs.

The IAS court properly discontinued the action with prejudice where plaintiff's request for a discontinuance without prejudice was an apparent attempt to evade the consequences of an adverse order on defendant's pending motion for summary judgment and preserve its ability to commence a Federal action (see, Brenhouse v. Anthony Indus., 156 A.D.2d 411, 548 N.Y.S.2d 533; Angerame v. Nissenbaum, 208 A.D.2d 579, 617 N.Y.S.2d 194).

MEMORANDUM DECISION.

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