Brockman v. Turin

130 A.D.2d 616, 515 N.Y.S.2d 545, 1987 N.Y. App. Div. LEXIS 46628

Opinion

In an action to recover on a promissory note, the defendant appeals from an order of the Supreme Court, Nassau County (Becker, J.), dated February 21, 1986, which granted the plaintiffs motion pursuant to CPLR 3217 (b) for leave to discontinue the action.

Ordered that the order is modified, as an exercise of discretion, by adding a provision that leave to discontinue the action is granted on condition that the plaintiff pay costs and disbursements of the action and pay $250 to the defendant, and granting the defendant leave to enter a judgment for those amounts; as so modified, the order is affirmed, without costs or disbursements.

Absent prejudice to a substantial right of the defendant or some other inequity, a motion for leave to discontinue an action should be granted (Shaffer v Best Farms No. 3, 107 AD2d 745, 746; County of Westchester v Becket Assocs., 102 AD2d 34, 49, affd 66 NY2d 642).

The plaintiff had begun a second identical action before he moved for leave to discontinue the first action. Thus, the plaintiff placed the defendant in a position of defending an action in two separate forums. The order properly granted leave to discontinue the first action but should be modified to impose terms and conditions to correct the harm caused by the plaintiffs beginning the second action (see, CPLR 3217 [b]; see, Mandelbaum v L.N. Mag. Distribs., 28 AD2d 680). Bracken, J. P., Niehoff, Kooper and Sullivan, JJ., concur.