Hockmeyer v. Bloch

Appellate Division of the Supreme Court of New York

Hockmeyer v. Bloch

159 A.D.2d 444

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

DecidedMarch 29, 1990

StatusPublished

Cited by1 cases

This text of 159 A.D.2d 444 (Hockmeyer v. Bloch) 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.

Bluebook

Hockmeyer v. Bloch, 159 A.D.2d 444 (N.Y. Ct. App. 1990).

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Opinion

Order, Supreme Court, New York County (Harold Tompkins, J.), entered February 8, 1989, granting plaintiff’s motion, pursuant to CPLR 3217 (b), for an order [445]*445discontinuing her action, unanimously affirmed, without costs or disbursements.

Plaintiff commenced an action for a declaratory judgment and injunctive relief in connection with her right under the Rent Stabilization Law, inter alia, to sublet the premises and for a finding that she had used the premises as her primary residence. In answer to plaintiff’s verified complaint, defendants asserted various affirmative defenses and sought a declaration that plaintiff had not used the premises as a primary residence. After discovery, plaintiff, who had been away for educational purposes, returned to the premises and no longer sought to sublet them. Since plaintiff was no longer in need of the relief sought by her verified complaint, she sought to discontinue the action.

Recognizing that the authority to grant or deny an application made by a party to voluntarily discontinue litigation is within the sound discretion of the nisi prius court and that, ordinarily, a party cannot be compelled to litigate, absent special circumstances, the discontinuance was properly granted (Tucker v Tucker, 55 NY2d 378, 383). Defendants have failed to demonstrate any special circumstances or particular prejudice flowing from the discontinuance to lead us to conclude that the IAS court abused its discretion, as a matter of law.

Furthermore, we see no basis for concluding that the IAS court erred in declining to impose conditions on the discontinuance. Defendants may commence a summary proceeding in the Civil Court, as suggested by the Supreme Court, to resolve what it views as outstanding issues and obtain the benefit of discovery already completed. Further, there is no bar to consideration of such issues in the Civil Court, since plaintiff has discontinued her claim for declaratory and injunctive relief. Concur—Kupferman, J. P., Ross, Milonas, Asch and Ellerin, JJ.

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Order, Supreme Court, New York County (Harold Tompkins, J.), entered February 8, 1989, granting plaintiff’s motion, pursuant to CPLR 3217 (b), for an order [445]*445discontinuing her action, unanimously affirmed, without costs or disbursements.

Plaintiff commenced an action for a declaratory judgment and injunctive relief in connection with her right under the Rent Stabilization Law, inter alia, to sublet the premises and for a finding that she had used the premises as her primary residence. In answer to plaintiff’s verified complaint, defendants asserted various affirmative defenses and sought a declaration that plaintiff had not used the premises as a primary residence. After discovery, plaintiff, who had been away for educational purposes, returned to the premises and no longer sought to sublet them. Since plaintiff was no longer in need of the relief sought by her verified complaint, she sought to discontinue the action.

Recognizing that the authority to grant or deny an application made by a party to voluntarily discontinue litigation is within the sound discretion of the nisi prius court and that, ordinarily, a party cannot be compelled to litigate, absent special circumstances, the discontinuance was properly granted (Tucker v Tucker, 55 NY2d 378, 383). Defendants have failed to demonstrate any special circumstances or particular prejudice flowing from the discontinuance to lead us to conclude that the IAS court abused its discretion, as a matter of law.

Furthermore, we see no basis for concluding that the IAS court erred in declining to impose conditions on the discontinuance. Defendants may commence a summary proceeding in the Civil Court, as suggested by the Supreme Court, to resolve what it views as outstanding issues and obtain the benefit of discovery already completed. Further, there is no bar to consideration of such issues in the Civil Court, since plaintiff has discontinued her claim for declaratory and injunctive relief. Concur—Kupferman, J. P., Ross, Milonas, Asch and Ellerin, JJ.

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Bluebook (online)

159 A.D.2d 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hockmeyer-v-bloch-nyappdiv-1990.

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