Opinion
43 CA 21-00257
03-11-2022
Eric Sean ALSTON, Jr., Plaintiff-Appellant, v. DIVINE BROTHERS COMPANY, Defendant, PCC Airfoils, LLC, and NHVS International, Inc., Defendants-Respondents.
WEITZMAN LAW OFFICES, L.L.C., NEW YORK CITY (RAPHAEL WEITZMAN OF COUNSEL), FOR PLAINTIFF-APPELLANT. ADDELMAN CROSS & BALDWIN, PC, BUFFALO (JESSE B. BALDWIN OF COUNSEL), FOR DEFENDANT-RESPONDENT PCC AIRFOILS, LLC. BRESSLER, AMERY & ROSS, P.C., NEW YORK CITY (JORKEELL ECHEVERRIA OF COUNSEL), FOR DEFENDANT-RESPONDENT NHVS INTERNATIONAL, INC.
WEITZMAN LAW OFFICES, L.L.C., NEW YORK CITY (RAPHAEL WEITZMAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
ADDELMAN CROSS & BALDWIN, PC, BUFFALO (JESSE B. BALDWIN OF COUNSEL), FOR DEFENDANT-RESPONDENT PCC AIRFOILS, LLC.
BRESSLER, AMERY & ROSS, P.C., NEW YORK CITY (JORKEELL ECHEVERRIA OF COUNSEL), FOR DEFENDANT-RESPONDENT NHVS INTERNATIONAL, INC.
PRESENT: CENTRA, J.P., NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained when his right hand was allegedly pulled into a finishing machine, partially amputating three fingers. At the time of the incident, plaintiff, an employee of defendant NHVS International, Inc. (NHVS), was operating the machine in an NHVS facility. Defendant Divine Brothers Company (Divine) allegedly manufactured the machine and sold it to defendant PCC Airfoils, LLC (PCC), which allegedly sold or leased the machine to NHVS. Defendants each moved to dismiss the complaint against them. Defendants asserted, inter alia, that plaintiff's claims were barred by collateral estoppel inasmuch as Supreme Court, Bronx County, had dismissed another personal injury action commenced by plaintiff relating to the same incident and injuries on the ground of forum non conveniens. Thereafter, plaintiff attempted to discontinue the instant action without prejudice by stipulation, but defendants refused to stipulate to the discontinuance. Plaintiff moved for a court order of discontinuance without prejudice pursuant to CPLR 3217 (b). Supreme Court effectively granted the motion insofar as it sought a discontinuance, but directed that the action be discontinued with prejudice. Plaintiff now appeals.
The determination whether to grant a plaintiff's motion for an order of discontinuance rests within the court's sound discretion (see Tucker v. Tucker , 55 N.Y.2d 378, 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050 [1982] ; see also White v. County of Erie [appeal No. 2], 309 A.D.2d 1299, 1300, 765 N.Y.S.2d 408 [4th Dept. 2003] ). If the court grants the discontinuance, the court can set the "terms and conditions" of the discontinuance, "as the court deems proper" ( CPLR 3217 [b] ). Under the circumstances of this case, the court properly denied plaintiff's motion insofar as it sought the discontinuance of this action without prejudice. We conclude that plaintiff's motion to that extent was an apparent attempt to evade the consequences of an adverse order on defendants’ pending motions to dismiss (see Turner v. Ritter , 293 A.D.2d 404, 404, 740 N.Y.S.2d 622 [1st Dept. 2002] ; NBN Broadcasting, Inc. v. Sheridan Broadcasting Networks, Inc. , 240 A.D.2d 319, 319, 659 N.Y.S.2d 262 [1st Dept. 1997] ).
We decline to address the merits of plaintiff's remaining contentions inasmuch as we thereby would be rendering an advisory opinion (see generally Matter of Monroe Sq. Assoc., L.P. v. Board of Assessors , 23 A.D.3d 985, 986, 803 N.Y.S.2d 844 [4th Dept. 2005] ).