Sinopoli v. Buda

159 A.D.2d 464, 552 N.Y.S.2d 837, 1990 N.Y. App. Div. LEXIS 2625

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1990
• Status: Published

Opinion

Motion by the plaintiffs for reargument of an appeal from a judgment of the Supreme Court, Westchester County (Coppola, J.), dated November 24, 1987, which was determined by decision and order of this court dated October 2,1989 [154 AD2d 364].

Upon the papers filed in support of the motion and no papers having been submitted in opposition thereto, it is

Ordered that the motion is granted and, upon reargument, the decision and order of this court dated October 2, 1989, is recalled and vacated, and the following decision and order is substituted therefor.

In an action, inter alia, to enjoin the obstruction of a "public right-of-way”, the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Coppola, J.), dated November 24, 1987, which after a nonjury trial, and upon granting the defendants’ motion for judgment during trial, dismissed the complaint "on the merits”. The appeal brings up for review an order of the same court, also dated November 24, 1987, which denied the plaintiffs’ motion, in effect, for leave to discontinue the action without prejudice.

Ordered that Justice Mangano is substituted for former Justice Spatt; and it is further,

Ordered that the judgment is reversed, as a matter of discretion, without costs or disbursements, the order is vacated, the motion is granted, and the action is discontinued without prejudice.

Under the particular circumstances of this case, we conclude that the Supreme Court improvidently exercised its discretion in denying the plaintiffs’ motion, in effect, for leave to discontinue the action without prejudice. Mollen, P. J., Mangano, Thompson, and Kunzeman, JJ., concur.