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Breytman v. Olinville Realty

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 23, 2010

ALEXANDER BREYTMAN, PLAINTIFF-APPELLANT,
v.
OLINVILLE REALTY, LLC, ET AL., DEFENDANT-RESPONDENTS, CITY OF NEW YORK, ET AL., DEFENDANTS. [AND ANOTHER ACTION]

Order and judgment (one paper), Supreme Court, New York County (Milton A. Tingling, J.), entered January 20, 2009, which denied plaintiff's motion to restore the case to active status, and granted defendants-respondents' cross motion pursuant to CPLR 3217(b) to voluntarily withdraw their counterclaims, unanimously affirmed, without 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.

Tom, J.P., Moskowitz, Renwick, DeGrasse, JJ.

402940/04

The determination of the motion court was appropriate in light of this Court's dismissal of plaintiff's action as against respondents (46 AD3d 484 [2007], lv dismissed in part and denied in part 11 NY3d 768 [2008]). Plaintiff has not shown that the dismissal of the counterclaims has caused him prejudice, nor are there any other special circumstances warranting that respondents be compelled to pursue their counterclaims (see Burnham Serv. Corp. v National Council on Compensation Ins., 288 AD2d 31, 32 [2001]).

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

20100223

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