Independent Cement Corp. v. Camelio

Appellate Division of the Supreme Court of New York

Independent Cement Corp. v. Camelio

203 A.D.2d 526, 612 N.Y.S.2d 951, 1994 N.Y. App. Div. LEXIS 4308

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

DecidedApril 25, 1994

StatusPublished

This text of 203 A.D.2d 526 (Independent Cement Corp. v. Camelio) 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

Independent Cement Corp. v. Camelio, 203 A.D.2d 526, 612 N.Y.S.2d 951, 1994 N.Y. App. Div. LEXIS 4308 (N.Y. Ct. App. 1994).

Pincite

Opinion

—In an action to recover upon personal guarantees, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Oshrin, J.), dated April 6, 1992, as, upon reargument, adhered to its original determination granting the plaintiffs motion for partial summary judgment dismissing the defendants’ third affirmative defense.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the defendants’ contention, the record demonstrates that the prior Nassau County action which sought recovery upon the personal guarantees in question was voluntarily discontinued by court order pursuant to CPLR 3217 (b). Since the judgment which granted the application to discontinue the action against the defendants did not specify otherwise, the discontinuance was without prejudice (see, CPLR [527]*5273217 [c]), and did not bar the plaintiff from commencing the instant action to recover upon the guarantees (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3217:15, at 735). Accordingly, the Supreme Court properly dismissed the defendants’ third affirmative defense which asserted that an action on the same guarantees involving the same parties had previously been dismissed by the court. Miller, J. P., Lawrence, Altman and Krausman, JJ., concur.

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—In an action to recover upon personal guarantees, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Oshrin, J.), dated April 6, 1992, as, upon reargument, adhered to its original determination granting the plaintiffs motion for partial summary judgment dismissing the defendants’ third affirmative defense.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the defendants’ contention, the record demonstrates that the prior Nassau County action which sought recovery upon the personal guarantees in question was voluntarily discontinued by court order pursuant to CPLR 3217 (b). Since the judgment which granted the application to discontinue the action against the defendants did not specify otherwise, the discontinuance was without prejudice (see, CPLR [527]*5273217 [c]), and did not bar the plaintiff from commencing the instant action to recover upon the guarantees (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3217:15, at 735). Accordingly, the Supreme Court properly dismissed the defendants’ third affirmative defense which asserted that an action on the same guarantees involving the same parties had previously been dismissed by the court. Miller, J. P., Lawrence, Altman and Krausman, JJ., concur.

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Bluebook (online)

203 A.D.2d 526, 612 N.Y.S.2d 951, 1994 N.Y. App. Div. LEXIS 4308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/independent-cement-corp-v-camelio-nyappdiv-1994.