McMAHAN v. Andrew D. Stone, et al., Defendants. (2009)

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered July 14, 2008, which, sua sponte, discontinued the action without prejudice, unanimously modified, on the law and the facts, to discontinue the action with prejudice as against defendant-appellant, and otherwise affirmed, without costs.

As against appellant, the action should not have been discontinued without prejudice where plaintiff's notice of discontinuance was untimely under CPLR 3217(a) (see Citidress II Corp. v. Hinshaw & Culbertson LLP, 59 A.D.3d 210, 211, 873 N.Y.S.2d 53 [2009] ), and was apparently served in order to avoid an adverse decision on a pending motion to dismiss the complaint with prejudice and to enable plaintiff to raise the claims she makes herein in another pending action (see NBN Broadcasting v. Sheridan Broadcasting Networks, 240 A.D.2d 319, 659 N.Y.S.2d 262 [1997] ).   The foregoing renders academic appellant's claim that the motion court should have granted its motion to dismiss the complaint on default (see 176-60 Union Turnpike v. Howard Beach Fitness Ctr., 271 A.D.2d 327, 328, 706 N.Y.S.2d 875 [2000] ).