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Gonzalez v. Kaye

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 29, 2009

DANIEL GONZALEZ, PLAINTIFF-RESPONDENT,
v.
EUGENIA KAYE, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered May 8, 2008, which, inter alia, granted plaintiff's motion to voluntarily discontinue the action, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Friedman, Nardelli, Sweeny, DeGrasse, JJ.

100596/07

Defendant claims no prejudice arising from the discontinuance of the action (see Burnham Serv. Corp. v National Council on Compensation Ins., 288 AD2d 31, 32-33 [2001]). She contends that plaintiff sought the discontinuance to avoid an adverse determination on defendant's motion for summary judgment (see e.g. Matter of Baltia Air Lines v CIBC Oppenheimer Corp., 273 AD2d 55, 57 [2000], lv denied 95 NY2d 767 [2000]). However, the record reflects that plaintiff sought a discontinuance on several occasions before defendant made her motion. Moreover, we cannot conclude that defendant would have prevailed on the motion, since, although she sought summary judgment on the merits, discovery was not complete and no depositions had been taken.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090129

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