Laurentis v. Bercowitz

27 A.D.2d 869, 277 N.Y.S.2d 728, 1967 N.Y. App. Div. LEXIS 4734

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1967
• Status: Published

Opinions

Reynolds, J.

Appeal from an order of the Supreme Court, Columbia County, denying appellants’ motion to discontinue their action (CPLR 3217). Upon the showing made in this case, appellants’ motion for discontinuance should not have been denied in the absence of special circumstances more compelling than those here present (Schultz v. Kobus, 15 A D 2d 382; see Piedmont Hotel Co. v. Nettleton Co., 241 App. Div. 562, 563-564; cf. Conklin v. Wilbur, 26 A D 2d 666), and the motion should be granted on such terms as in the exercise of discretion be deemed appropriate, including not only statutory costs and disbursements but also any expenses incurred by the defendant in preparation for trial including legal fees. Consideration should be given to additional expenses with respect to expert witnesses which might be incurred as the result of the change of place of trial (see Grosner v. Abramson, 162 Misc. 731; William v. Artcraft Optical Co., 176 Misc. 317). We do not condone appellants’ tactical maneuvers nor overlook their effect upon the conduct of a busy trial term. Order reversed, on the law and the facts, without costs, and matter remitted to an appropriate Special Term, Mr. Justice Pennock presiding, for determination of the terms and conditions, if any, upon which the granting of discontinuance should be predicated. Settle order. Gibson, P. J., Reynolds, Aulisi and Staley, Jr., JJ., eoneur in memorandum decision by Reynolds, J. Herlihy, J., dissents and votes to affirm in the following memorandum.