KAPLAN v. VILLAGE OF OSSINING

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

Adam KAPLAN, etc., et al., respondents, v. VILLAGE OF OSSINING, et al., appellants.

Decided: December 26, 2006

STEPHEN G. CRANE, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN and ROBERT A. SPOLZINO, JJ. Boeggeman, George, Hodges & Corde, P.C., (Cynthia Dolan of counsel), for appellants.

In an action, inter alia, to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered November 18, 2005, as denied that branch of their motion which was for summary judgment dismissing the third cause of action and granted the plaintiffs' cross motion pursuant to CPLR 3217(b) to voluntarily discontinue that cause of action without prejudice.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, that branch of the motion which was for summary judgment dismissing the third cause of action is granted, and the cross motion to voluntarily discontinue the third cause of action without prejudice is denied.

 The Supreme Court improvidently exercised its discretion in denying that branch of the defendants' motion which was for summary judgment dismissing the third cause of action (see CPLR 3212[e] ) and granting the plaintiffs' cross motion to voluntarily discontinue that cause of action without prejudice (see CPLR 3217[b] ).  The record supports a finding that the plaintiffs were merely attempting to circumvent the effect of a preceding conditional order of preclusion (see Venture I v. Voutsinas, 8 A.D.3d 475, 778 N.Y.S.2d 311).  “A plaintiff should not be permitted to discontinue an action without prejudice for the purpose of avoiding an adverse order of the court” (Casey v. Custom Crushing & Materials, 309 A.D.2d 726, 727, 765 N.Y.S.2d 268;  see Schachter v. Royal Ins. Co. of America, 21 A.D.3d 1024, 1025, 801 N.Y.S.2d 372;  cf. Mathias v. Daily News, L.P., 301 A.D.2d 503, 504, 752 N.Y.S.2d 896;  St. Pierre v. Ostreich, 123 A.D.2d 857, 507 N.Y.S.2d 642).

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