Chew v. Chang
| Decision Date | 05 May 2023 |
| Docket Number | Index No. 527849/2022,Motion Seq. 3 |
| Citation | 2023 NY Slip Op 31602 (U) |
| Parties | RAYLENE CHEW., STEPHEN SHAN, SIDDHANTA DANGE and EVAN KATZ, Plaintiffs, v. JESSICA CHANG, Defendant, |
| Court | New York Supreme Court |
Unpublished Opinion:
The plaintiffs move pursuant to CPLR §3217(b) seeking to discontinue the action without prejudice. The defendant has opposed the motion and cross-moved seeking summary judgement pursuant to CPLR §3212 dismissing the lawsuit. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.
The facts were adequately presented in a prior order dated January 4, 2023. in that order the court dismissed the breach of contract cause of action. The plaintiffs have now moved to discontinue the action without prejudice. As noted, that motion is opposed and the defendant seeks summary judgment dismissing the entire action.
It is well settled that a plaintiff may discontinue an action against certain defendants where the substantial rights of other parties will not be prejudiced (Tucker v Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683 [1982] Ruderman v. Brunn, 65 A.D.2d 771, 409 N.Y.S.2d 789 [2d Dept.., 1978]) . That discretion includes the determination whether such discontinuance is granted 'without prejudice' (Valladares v. Valladares,, 80 A.D.2d 244, 438 N.Y.S.2d 810 [2d Dept., 1981]). The decision whether to grant such, discontinuance rests with the sound discretion of the court (Harper v. Jamaica Hospital, 239 A.D.2d 388 658 N.Y.S.2d 883 [2d Dept., 1997]). Generally, such discontinuance should be granted unless valid reasons, such as prejudice to the defendant, warrant denial . Prejudice means the discontinuance would prejudice a substantial right of a party, circumvent an order of the court, avoid the consequences of a potentially adverse determination or produce some other improper result (Marinelli v. Wimmer, 139 A.D.3d 914, 30 N.Y.S.3d 571 [2d Dept., 2016]). Thus, in Catherine Commons LLC v. Town of Orangetown, 157 A.D.3d 785, 69 N.Y.S.3d 662 [2d Dept., 2018] the court denied the request for voluntary discontinuance since such discontinuance would prejudice a party's ability to challenge an assessment. Again in Baez v. Parkway Mobile Homes Inc., 125 A.D.3d 905, 5 N.Y.S.3d 154 [2d Dept., 2015] the court held discontinuance was improper where it was only pursued to avoid the consequences of failing to respond to a 90 notice and an adverse determination of a summary judgment motion filed.
In this case the basis for the discontinuance is the desire of the plaintiff's "to retain counsel elsewhere" (see, Memorandum in Support., page 2 [NYSCEF Doc. No.. 35]) . The plaintiff elaborates in a reply memorandum that "Plaintiffs have chosen to seek new counsel and sue Defendant in California with that new counsel" (see. Affirmation in Opposition to Defendant's Cross-Motion,: page 1 [NYSCEF Doc. No. 44]) .
In Urbondwicz. v. Yarinskv, 290 A.D.2d 922, 7 37 N.Y.S.2d 398 [3rd Dept., 2002] the plaintiffs there sought to "commence a second action in Saratoga County, a proper venue where they believed a higher verdict could be obtained" (id). The court maintained there .was nothing improper about such a request as long as it did not result, in prejudice to the defendants,. Moreover, concerning the allegation such a request is nothing more than impermissible forum shopping the court explained that (id) . Likewise, in Carter v. Howland Hook Housing Company Inc., 19 A.D.3d 14 6, 7 97 N.YS2d 11. [2d Dept., 2005] the court allowed an action venued in New York...
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