Faustino Muy, plaintiff, v. Robert Bosch Power Tool Corporation, et al., appellants, Saga House Condominium, et al., respondents. (2011)

Argued-December 9, 2010

DECISION & ORDER

In an action to recover damages for personal injuries, the appeal is from an order of the Supreme Court, Queens County (Lebowitz, J.), dated March 4, 2010, which denied the appellants' motion pursuant to CPLR 3217(b), in effect, to enforce a stipulation pursuant to which the plaintiff agreed to voluntarily discontinue the action insofar as asserted against them.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the appellants' motion pursuant to CPLR 3217(b), in effect, to enforce a stipulation pursuant to which the plaintiff agreed to voluntarily discontinue the action insofar as asserted against them is granted;  and it is further,

ORDERED that the matter is remitted to the Supreme Court, Queens County, to convert the cross claims asserted by the defendants Saga House Condominium and Charles Greenthal Management against the appellants to a third-party action, and to amend the caption accordingly.

“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” (Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d 961, 961;  see Tucker v. Tucker, 55 N.Y.2d 378, 383).   Here, the Supreme Court improvidently exercised its discretion in denying the appellants' motion pursuant to CPLR 3217(b), in effect, to enforce a stipulation pursuant to which the plaintiff agreed to voluntarily discontinue the action insofar as asserted against them because there was no showing that the defendants Saga House Condominium and Charles Greenthal Management would be prejudiced by such discontinuance, since their cross claims will continue as a third-party action (see Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d at 961;  Parraguirre v. 27th St. Holding, LLC, 37 AD3d 793, 794;  Citibank v. Nagrotsky, 239 A.D.2d 456, 457).

SKELOS, J.P., FLORIO, BALKIN and LEVENTHAL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court