New York Downtown Hospital v. Terry

Appellate Division of the Supreme Court of New York

New York Downtown Hospital v. Terry

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

Appellate Division of the Supreme Court of the State of New York·Decided January 18, 2011·Published·Cited by 3 cases

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 [494] $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.

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— 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 [494] $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.

New York Downtown Hospital v. Terry, 80 A.D.3d 493, 914 N.Y.S.2d 628 (N.Y. Ct. App. 2011).

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