25 Jay Street Tenants' Ass'n v. 25 Jay Street, LLC

290 A.D.2d 503, 736 N.Y.S.2d 271, 2002 N.Y. App. Div. LEXIS 585

Opinion

In an action, inter alia, for a judgment declaring that the plaintiffs’ apartments are rent stabilized, the plaintiffs appeal from (1) stated portions of an order of the Supreme Court, Kings County (Jones, J.), dated October 23, 2000, which, inter alia, granted that branch of the defendant’s motion which was to dismiss the seventh cause of action alleging breach of the warranty of habitability, and (2) an order of the same court dated March 29, 2001, which denied their motion pursuant to CPLR 3217 (b) to discontinue their action without prejudice.

Ordered that the order dated October 23, 2000, is affirmed insofar as appealed from; and it is further,

Ordered that the order dated March 29, 2001, is affirmed; and it is further,

Ordered, that the respondents are awarded one bill of costs.

The plaintiffs contend that the Supreme Court improperly denied their motion for a voluntary discontinuance of the instant action. The authority of a court to grant or to deny an application for voluntary discontinuance of a litigation made pursuant to CPLR 3217 (b) is within its sound discretion (see, Tucker v Tucker, 55 NY2d 378, 383; Great W. Bank v Terio, 200 AD2d 608, 609). In the instant case, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion to discontinue the action, as the defendants were able to establish prejudice to them if the action was discontinued (see, CPLR 3217 [b]; Tucker v Tucker, supra, at 383; Great W. Bank v Terio, supra; Matter of Carla L. v Terry M., 178 AD2d 881; State of New York v Hubbard, 126 AD2d 717, 718).

The plaintiffs’ remaining contentions are without merit. Feuerstein, J.P., Krausman, Friedmann and Schmidt, JJ., concur.