Gonzalez v. Kaye

Appellate Division of the Supreme Court of New York

Gonzalez v. Kaye

58 A.D.3d 578, 872 N.Y.S.2d 443

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 29, 2009

StatusPublished

Cited by2 cases

This text of 58 A.D.3d 578 (Gonzalez v. Kaye) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gonzalez v. Kaye, 58 A.D.3d 578, 872 N.Y.S.2d 443 (N.Y. Ct. App. 2009).

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Opinion

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered May 8, 2008, which, inter alia, granted plaintiffs motion to voluntarily discontinue the action, unanimously affirmed, with costs.

Defendant claims no prejudice arising from the discontinu-[579]*579anee of the action (see Burnham Serv. Corp. v National Council on Compensation Ins., 288 AD2d 31, 32-33 [2001]). She contends that plaintiff sought the discontinuance to avoid an adverse determination on defendant’s motion for summary judgment (see e.g. Matter of Baltia Air Lines v CIBC Oppenheimer Corp., 273 AD2d 55, 57 [2000], lv denied 95 NY2d 767 [2000]). However, the record reflects that plaintiff sought a discontinuance on several occasions before defendant made her motion. Moreover, we cannot conclude that defendant would have prevailed on the motion, since, although she sought summary judgment on the merits, discovery was not complete and no depositions had been taken. Concur—Saxe, J.E, Friedman, Nardelli, Sweeny and DeGrasse, JJ.

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Order, Supreme Court, New York County (Carol R. Edmead, J.), entered May 8, 2008, which, inter alia, granted plaintiffs motion to voluntarily discontinue the action, unanimously affirmed, with costs.

Defendant claims no prejudice arising from the discontinu-[579]*579anee of the action (see Burnham Serv. Corp. v National Council on Compensation Ins., 288 AD2d 31, 32-33 [2001]). She contends that plaintiff sought the discontinuance to avoid an adverse determination on defendant’s motion for summary judgment (see e.g. Matter of Baltia Air Lines v CIBC Oppenheimer Corp., 273 AD2d 55, 57 [2000], lv denied 95 NY2d 767 [2000]). However, the record reflects that plaintiff sought a discontinuance on several occasions before defendant made her motion. Moreover, we cannot conclude that defendant would have prevailed on the motion, since, although she sought summary judgment on the merits, discovery was not complete and no depositions had been taken. Concur—Saxe, J.E, Friedman, Nardelli, Sweeny and DeGrasse, JJ.

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Bluebook (online)

58 A.D.3d 578, 872 N.Y.S.2d 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-kaye-nyappdiv-2009.

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