New York Downtown Hospital v. Terry

80 A.D.3d 493, 914 N.Y.S.2d 628

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 2011
• Status: Published

Opinion

— Amended order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 25, 2010, which, to the extent appealed from, conditioned the grant of plaintiffs’ application for a voluntary discontinuance of their action on their payment of the sum of $10,000 to defendants, unanimously modified, in the exercise of discretion, to the extent of striking the payment requirement, and otherwise affirmed, without costs.

Contrary to plaintiffs’ assertions, it is within a court’s discretion to condition an application for a voluntary discontinuance made pursuant to CPLR 3217 (b) upon the movant paying the adverse party’s legal fees, costs, and disbursements (see Beigel v Cohen, 158 AD2d 339 [1990]). However, under the circumstances presented, the court should have allowed plaintiffs to discontinue their libel claims without any condition (see Townhouse Co., LLC v Peters, 17 Misc 3d 133[A], 2007 NY Slip Op 52111[U] [2007]). Concur — Gonzalez, P.J., Mazzarelli, Moskowitz, Acosta and Román, JJ.