NBN Broadcasting, Inc. v. Sheridan Broadcasting Networks, Inc.

240 A.D.2d 319, 659 N.Y.S.2d 262, 1997 N.Y. App. Div. LEXIS 6767

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1997
• Status: Published

Opinion

Orders, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about December 11, 1995, which, upon plaintiff’s motion for leave to discontinue the action without prejudice, discontinued the action with prejudice, unanimously affirmed, with one bill of costs. Appeal from order of the same court and Justice entered on or about October 17, 1995, denying plaintiff’s motion for a preliminary injunction, unanimously dismissed as abandoned, without costs.

The IAS Court properly discontinued the action with prejudice where plaintiff’s request for a discontinuance without prejudice was an apparent attempt to evade the consequences of an adverse order on defendant’s pending motion for summary judgment and preserve its ability to commence a Federal action (see, Brenhouse v Anthony Indus., 156 AD2d 411; Angerame v Nissenhaum, 208 AD2d 579). Concur—Ellerin, J. P., Wallach, Nardelli, Rubin and Mazzarelli, JJ.