Ruderman v. Brunn

65 A.D.2d 771, 409 N.Y.S.2d 789, 1978 N.Y. App. Div. LEXIS 13603

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1978
• Status: Published

Opinion

In an action to recover damages predicated upon medical malpractice and products liability, plaintiffs appeal from an order of the Supreme Court, Orange County, entered March 28, 1978, which denied their motion, pursuant to CPLR 3217, to voluntarily discontinue their action, without prejudice. Order reversed, on the law and as a matter of discretion, without costs or disbursements, upon the condition that plaintiffs pay $100 each to defendants Brunn, Wiener and Fried within 20 days after entry of the order to be made hereon; in the event that such condition is not complied with, then order affirmed, with $50 costs and disbursements. A plaintiff has a right to discontinue an action, conditioned upon the imposition of appropriate costs, where the substantial rights of other parties will not be prejudiced and where injustice will not result (Schimansky v Nelson, 50 AD2d 634; 7 Carmody-Wait 2d, NY Prac, § 47:12). Plaintiffs here sought to discontinue the action at a very early stage in the proceedings and have set forth as their reason the desire to take advantage of broader discovery available to them if the action is brought in a Federal forum. No serious prejudice would result from the discontinuance. Therefore, the plaintiffs’ motion should be granted upon the condition hereinabove mentioned. Shapiro, J. P., Cohalan, Margett and O’Connor, JJ., concur.