Marinelli v. Wimmer

• Decision Date: 18 May 2016
• Docket Number: 2015-04332, Index No. 509553/14.
• Citation: 30 N.Y.S.3d 571 (Mem),139 A.D.3d 914,2016 N.Y. Slip Op. 03858
• Parties: Michael MARINELLI, appellant, v. Eckard WIMMER, et al., respondents.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 914

30 N.Y.S.3d 571 (Mem)

2016 N.Y. Slip Op. 03858

Michael MARINELLI, appellant,

v.Eckard WIMMER, et al., respondents.

2015-04332, Index No. 509553/14.

Supreme Court, Appellate Division, Second Department, New York.

May 18, 2016.

Paul Ajlouny & Associates, P.C., Garden City, NY (Neil Flynn of counsel), for appellant.

Abamont & Associates, Garden City, NY (Jonathan Hirschhorn of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated March 12, 2015, as denied his cross motion pursuant to CPLR 3217(b) for leave to discontinue the action without prejudice.

ORDERED that the order is affirmed insofar as appealed from, with costs.

After the plaintiff commenced this action in the Supreme Court, Kings County, the defendants moved to change venue to Suffolk County, contending that Kings County was an improper venue. The plaintiff then cross-moved pursuant to CPLR 3217(b) for leave to discontinue the action without prejudice in the event that the court granted the defendants' motion. The court granted the defendants' motion, transferred the case to Suffolk County, and denied the plaintiff's cross motion. We affirm insofar as appealed from.

While the plaintiff concedes that venue was improperly placed in Kings County, he contends that his cross motion to discontinue should have been granted. A motion for leave to discontinue an action is addressed to the sound discretion of the court (see Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683, 434 N.E.2d 1050 ; Turco v. Turco, 117 A.D.3d 719, 985 N.Y.S.2d 261 ; GMAC Mtge., LLC v. Bisceglie, 109 A.D.3d 874, 973 N.Y.S.2d 225 ), and generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results (see Jamaica Hosp. Med. Ctr., Inc. v. Oxford Health Plans [NY], Inc., 58 A.D.3d 686, 871 N.Y.S.2d 665 ; Kaplan v. Village of Ossining, 35 A.D.3d 816, 827 N.Y.S.2d 278 ; DuBray v. Warner Bros. Records, 236 A.D.2d 312, 653 N.Y.S.2d 592 ).

Here, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion, since the record supports the conclusion that the requested discontinuance was improperly sought to avoid the consequences of a potentially adverse...