Leites v. Leites

Appellate Division of the Supreme Court of New York

Leites v. Leites

104 A.D.2d 342, 479 N.Y.S.2d 344, 1984 N.Y. App. Div. LEXIS 19814

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

DecidedAugust 29, 1984

StatusPublished

Cited by2 cases

This text of 104 A.D.2d 342 (Leites v. Leites) 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

Leites v. Leites, 104 A.D.2d 342, 479 N.Y.S.2d 344, 1984 N.Y. App. Div. LEXIS 19814 (N.Y. Ct. App. 1984).

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Opinions

Order of the Supreme Court, New York County (Hortense W. Gabel, J.), entered March 27, 1984, which granted, with prejudice, plaintiff’s cross motion to discontinue her first cause of action for divorce based upon the defendant’s adultery and denied defendant’s motion for reverse partial summary judgment for divorce on the first cause of action as being moot, is affirmed, without costs.

Although it is clear that, in a proper case, reverse summary judgment in a matrimonial action may be granted (Leeds v Leeds, 60 NY2d 641) and appropriate safeguards imposed by the court to prevent destruction of or interference with the parties’ rights in equitable distribution and otherwise (Peerce v Peerce, 97 AD2d 718; Rauch v Rauch, 91 AD2d 407), it is equally clear that “[ajbsent special circumstances it is well established that parties should not be compelled to litigate” (Cogan v Cogan, 90 AD2d 491, 492; Knobel v Knobel, 60 NY2d 672, affg 95 AD2d 845; Tucker v Tucker, 55 NY2d 378; see, generally, 4 Weinstein-Korn-Miller, NY Civ Prac, par 3217.06). The authority of a court to grant or deny an application for voluntary discontinuance pursuant to CPLR 3217 (subd [b]) is within the court’s sound discretion (Knobel v Knobel, 95 AD2d 845, affd 60 NY2d 672, supra), and discontinuance should be granted absent special circumstances, such as particular prejudice to the defendant or other improper consequences flowing from the discontinuance. (Tucker v Tucker, 55 NY2d 378, 383, supra.) No showing of “any particular prejudice to the defendant” has been made, nor has it been demonstrated that Special Term abused its discretion in allowing the discontinuance. Discontinuance having properly been allowed, defendant’s motion for reverse summary judgment based upon his admitted adultery was appropriately denied as academic. Concur — Asch, Bloom, Milonas and Alexander, JJ.

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Order of the Supreme Court, New York County (Hortense W. Gabel, J.), entered March 27, 1984, which granted, with prejudice, plaintiff’s cross motion to discontinue her first cause of action for divorce based upon the defendant’s adultery and denied defendant’s motion for reverse partial summary judgment for divorce on the first cause of action as being moot, is affirmed, without costs.

Although it is clear that, in a proper case, reverse summary judgment in a matrimonial action may be granted (Leeds v Leeds, 60 NY2d 641) and appropriate safeguards imposed by the court to prevent destruction of or interference with the parties’ rights in equitable distribution and otherwise (Peerce v Peerce, 97 AD2d 718; Rauch v Rauch, 91 AD2d 407), it is equally clear that “[ajbsent special circumstances it is well established that parties should not be compelled to litigate” (Cogan v Cogan, 90 AD2d 491, 492; Knobel v Knobel, 60 NY2d 672, affg 95 AD2d 845; Tucker v Tucker, 55 NY2d 378; see, generally, 4 Weinstein-Korn-Miller, NY Civ Prac, par 3217.06). The authority of a court to grant or deny an application for voluntary discontinuance pursuant to CPLR 3217 (subd [b]) is within the court’s sound discretion (Knobel v Knobel, 95 AD2d 845, affd 60 NY2d 672, supra), and discontinuance should be granted absent special circumstances, such as particular prejudice to the defendant or other improper consequences flowing from the discontinuance. (Tucker v Tucker, 55 NY2d 378, 383, supra.) No showing of “any particular prejudice to the defendant” has been made, nor has it been demonstrated that Special Term abused its discretion in allowing the discontinuance. Discontinuance having properly been allowed, defendant’s motion for reverse summary judgment based upon his admitted adultery was appropriately denied as academic. Concur — Asch, Bloom, Milonas and Alexander, JJ.

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104 A.D.2d 342, 479 N.Y.S.2d 344, 1984 N.Y. App. Div. LEXIS 19814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leites-v-leites-nyappdiv-1984.

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