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WHERE THERE IS NO PREJUDICE TO A DEFENDANT, PLAINTIFF’S MOTION FOR A VOLUNTARY DISCONTINUANCE WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for a voluntary discontinuance without prejudice should have been granted:

CPLR 3217(b) permits a voluntary discontinuance of a claim by court order “upon terms and conditions, as the court deems proper” (CPLR 3217[b]…). In general, absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice … .

Here, there was no evidence that the defendant would be prejudiced by a discontinuance without prejudice … . Kondaur Capital Corp. v Reilly, 2018 NY Slip Op 04707, Second Dept 6-27-18

​CIVIL PROCEDURE (DISCONTINUANCE, WHERE THERE IS NO PREJUDICE TO A DEFENDANT, PLAINTIFF’S MOTION FOR A VOLUNTARY DISCONTINUANCE WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT))/DISCONTINUANCE (WHERE THERE IS NO PREJUDICE TO A DEFENDANT, PLAINTIFF’S MOTION FOR A VOLUNTARY DISCONTINUANCE WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT))/VOLUNTARY DISCONTINUANCE (WHERE THERE IS NO PREJUDICE TO A DEFENDANT, PLAINTIFF’S MOTION FOR A VOLUNTARY DISCONTINUANCE WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT))/CPLR 3217 (DISCONTINUANCE, WHERE THERE IS NO PREJUDICE TO A DEFENDANT, PLAINTIFF’S MOTION FOR A VOLUNTARY DISCONTINUANCE WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT))

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PLEADING REQUIREMENTS FOR A LAUNDRY LIST OF FRAUD-RELATED CAUSES OF ACTION SUCCINCTLY ILLUSTRATED.
PLAINTIFF ENTITLED TO RECOVER THE FULL AMOUNT OF THE INVOICE UNDER AN ACCOUNT STATED THEORY (SECOND DEPT).
CANDIDATE DID NOT HAVE THE OPPORTUNITY TO RESPOND TO CHALLENGES TO SIGNATURES ON THE DESIGNATING PETITION, ALTHOUGH THE SUBSCRIBING WITNESS HAD TEMPORARILY MOVED OUT OF THE RESIDENCE DESCRIBED IN THE STATEMENT OF WITNESS SHE INTENDED TO RETURN, DESIGNATING PETITION SHOULD NOT HAVE BEEN INVALIDATED (SECOND DEPT).
AT THE SUPPRESSION HEARING THE OFFICER TESTIFIED THE SEARCH OF DEFENDANT’S PERSON AFTER A TRAFFIC STOP WAS BASED UPON THE ODOR OF MARIJUANA; THE OFFICER DID NOT TESTIFY HE WAS QUALIFIED BY TRAINING AND EXPERIENCE TO RECOGNIZE THE ODOR OF MARIJUANA; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
TENANT’S INSURANCE POLICY NAMED THE OWNER OF THE BUILDING AS AN ADDITIONAL INSURED, PLAINTIFF FELL ON A STAIRCASE IN AN AREA NOT LEASED TO THE TENANT, PLAINTIFF COULD NOT RECOVER UNDER THE ADDITIONAL INSURED PROVISION OF THE TENANT’S POLICY (SECOND DEPT).
NONPARTY SUBPOENA PROPERLY QUASHED BECAUSE IT DID NOT PROVIDE THE REASONS FOR THE REQUESTED DISCLOSURE, QUESTIONS OF FACT WHETHER STIPULATION OF SETTLEMENT WAS UNCONSCIONABLE AND WHETHER PLAINTIFF EXECUTED THE STIPULATION UNDER DURESS (SECOND DEPT).
THE PETITION STATED CAUSES OF ACTION FOR A VIOLATION OF REAL PROPERTY TAX LAW (RPTL) 305 AND VIOLATION OF EQUAL PROTECTION; THE PETITION ALLEGED LARGER HOMES WERE ASSESSED AT LESS THAN 100% OF MARKET VALUE AND SMALLER HOMES WERE ASSESSED AT 100% OF MARKET VALUE (SECOND DEPT). ​
SURROGATE’S COURT DOES NOT HAVE THE AUTHORITY TO ABROGATE OR VACATE A FOREIGN ORDER OF ADOPTION.

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