Breytman v. Olinville Realty, LLC

70 A.D.3d 573, 893 N.Y.S.2d 872

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 2010
• Status: Published

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Milton A. Tingling, J.), entered January 20, 2009, which denied plaintiffs motion to restore the case to active status, and granted defendants-respondents’ cross motion pursuant to CPLR 3217 (b) to voluntarily withdraw their counterclaims, unanimously affirmed, without costs.

The determination of the motion court was appropriate in light of this Court’s dismissal of plaintiffs action as against respondents (46 AD3d 484 [2007], lv dismissed in part and denied in part 11 NY3d 768 [2008]). Plaintiff has not shown that the dismissal of the counterclaims has caused him prejudice, nor are there any other special circumstances warranting that respondents be compelled to pursue their counterclaims (see Burnham Serv. Corp. v National Council on Compensation Ins., 288 AD2d 31, 32 [2001]). Concur—Tom, J.P., Moskowitz, Renwick and DeGrasse, JJ.