Summary
In Turner, the First Department held that the trial court did not abuse its discretion in discontinuing an action with prejudice where the plaintiff moved for a discontinuance without prejudice during a traverse hearing after the trial court had already ordered the plaintiff to provide a definite method of establishing the monies owed by defendant (293 AD2d at 404).
Summary of this case from Loeb Enters. II, LLC v. FlorenceOpinion
881
April 25, 2002.
Order, Supreme Court, New York County (Robert Lippmann, J.), entered January 18, 2001, which, upon plaintiff's motion for leave to discontinue the action without prejudice, discontinued the action with prejudice, unanimously affirmed, without costs.
Fay Ng, for plaintiff-appellant.
Joseph Edward Brady, for defendant-respondent.
Before: Nardelli, J.P., Buckley, Rosenberger, Ellerin, Rubin, JJ.
The court did not improvidently exercise its discretion in discontinuing the action with prejudice where plaintiff moved for a discontinuance without prejudice during the pendency of a traverse hearing after the court had ordered plaintiff to provide a definite method of establishing the amount of money defendant owed. This was an apparent attempt on plaintiff's part to evade the court's direction and circumvent its authority (see, NBN Broadcasting v. Sheridan Broadcasting Networks, 240 A.D.2d 319). We reject plaintiff's claim that it sought a discontinuance because of a problem establishing proper service.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.