Hirschfeld v. Stahl

242 A.D.2d 214, 661 N.Y.S.2d 959, 1997 N.Y. App. Div. LEXIS 8297

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 14, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about May 21, 1996, which, inter alia, granted plaintiff a discontinuance of the fourth through eighth causes of action upon certain conditions, unanimously modified, on the facts, to discontinue those causes of action with prejudice, and to restore plaintiff to his original verified complaint in the first action dated November 17, 1992, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered December 9, 1996, which denied defendants’ motion to reargue the prior order, unanimously dismissed, without costs, as taken from a nonappealable order.

The motion court should have granted the discontinuance with prejudice, since plaintiff would otherwise be able to circumvent a prior order of the same court, different Justice, rendered in connection with the second action prior to consolidation, and thereby deprive certain defendants of a substantial right by seeking disclosure ostensibly for purposes of what was the first action prior to consolidation.

Because certain causes of action in the consolidated complaint are derived from the second action, which is being discontinued, we reinstate plaintiff’s original verified complaint, dated November 17, 1992, in the first action before consolidation.

The order denying reargument is nonappealable (see, Berman v Szpilzinger, 180 AD2d 612). Concur—Murphy, P. J., Sullivan, Wallach and Mazzarelli, JJ.