Harper v. Jamaica Hospital

Appellate Division of the Supreme Court of New York

Harper v. Jamaica Hospital

239 A.D.2d 388, 658 N.Y.S.2d 883, 1997 N.Y. App. Div. LEXIS 5129

Appellate Division of the Supreme Court of the State of New York·Decided May 12, 1997·Published

Opinion

In an action to recover damages for medical malpractice, the defendant Abraham Appleton appeals from an order of the Supreme Court, Queens County (Berke, J.), dated June 7, 1996, which denied his motion pursuant to CPLR 3217 (b) to discontinue the action insofar as asserted against him without prejudice to renewal following the completion of discovery.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Queens County, for the purpose of establishing an expeditious discovery schedule.

[389] The determination of a motion pursuant to CPLR 3217 (b) for a voluntary discontinuance of an action is a matter addressed to the sound discretion of the court (see, Tucker v Tucker, 55 NY2d 378, 383; Conte v Getty Petroleum Corp., 202 AD2d 621, 622; Great W. Bank v Terio, 200 AD2d 608, 609). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying the appellant’s motion to discontinue the action insofar as asserted against him without prejudice to renewal following the completion of discovery (see, Felice v St. Agnes Hosp., 65 AD2d 388, 395-397).

However, in view of the length of time that this action has been pending, all discovery should be concluded expeditiously. Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.

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In an action to recover damages for medical malpractice, the defendant Abraham Appleton appeals from an order of the Supreme Court, Queens County (Berke, J.), dated June 7, 1996, which denied his motion pursuant to CPLR 3217 (b) to discontinue the action insofar as asserted against him without prejudice to renewal following the completion of discovery.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Queens County, for the purpose of establishing an expeditious discovery schedule.

[389] The determination of a motion pursuant to CPLR 3217 (b) for a voluntary discontinuance of an action is a matter addressed to the sound discretion of the court (see, Tucker v Tucker, 55 NY2d 378, 383; Conte v Getty Petroleum Corp., 202 AD2d 621, 622; Great W. Bank v Terio, 200 AD2d 608, 609). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying the appellant’s motion to discontinue the action insofar as asserted against him without prejudice to renewal following the completion of discovery (see, Felice v St. Agnes Hosp., 65 AD2d 388, 395-397).

However, in view of the length of time that this action has been pending, all discovery should be concluded expeditiously. Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.

Harper v. Jamaica Hospital, 239 A.D.2d 388, 658 N.Y.S.2d 883, 1997 N.Y. App. Div. LEXIS 5129 (N.Y. Ct. App. 1997).

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Opinion

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