Rosenberg v. 3130 Grand Concourse, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BREITEL; PER CURIAM
• Citation: Rosenberg v. 3130 Grand Concourse, Inc., 256 N.Y.S.2d 632, 23 A.D.2d 555 (N.Y. App. Div. 1965)
• Decision Date: 18 February 1965
• Parties: Alan Mark ROSENBERG, an infant, by Leo Rosenberg, his guardian ad litem, and Leo Rosenberg, Plaintiff-Appellants, v. 3130 GRAND CONCOURSE, INC., Defendant-Respondent.

Page 632

256 N.Y.S.2d 632

23 A.D.2d 555

Alan Mark ROSENBERG, an infant, by Leo Rosenberg, his guardian ad litem, and Leo Rosenberg, Plaintiff-Appellants, v. 3130 GRAND CONCOURSE, INC., Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Feb. 18, 1965.

G. Weisbrod, New York City, for plaintiffs-appellants.

R. D. Foglia, New York City, for defendant-respondent.

Before BREITEL, J. P., and RABIN, VALENTE, EAGER and BASTOW, JJ.

PER CURIAM.

Order, entered April 30, 1964, denying plaintiffs' motion to restore the case to the trial calendar, unanimously affirmed, without costs or disbursements to either party, without prejudice, however, to plaintiffs' entering an order discontinuing the action upon payment of taxable costs. The record shows that when the application by plaintiffs' attorney for an adjourment of the trial was denied, the attorney moved to discontinue the case without costs. Counsel for defendant consented to a discontinuance with costs. The Trial Judge ultimately concluded to allow a discontinuance upon payment of costs but also ruled that if the costs were not paid within 10 days, the case would be dismissed with prejudice. Under CPLR 3217(b) the action could have been discontinued upon an order of the Court upon such terms and conditions as the Court deemed proper. As a general rule, a party may discontinue an action at any time on payment of costs where rights or interests of an adverse party are not affected. (Gentilala v. Fay Taxicabs, Inc., 243 N.Y. 397, 153 N.E. 848; Granoff v. Henry Products Company, 279 App.Div. 747, 108 N.Y.S.2d 420.) As indicated, the record demonstrates that the motion for discontinuance was granted, and since defendant's counsel consented to the discontinuance with costs, it must be inferred that no substantial rights of the defendant had accrued which warranted the imposition of any terms other than the payment of costs. If plaintiffs felt...