Practice point: Absent a showing of special circumstances, including
prejudice to a substantial right of the defendant or other improper
consequences, a motion for a voluntary discontinuance should be granted
without prejudice. Here, there was no such showing if the plaintiff were permitted
to commence a second action for the same relief in another venue. Any prejudice to the defendants was properly obviated by
awarding costs and an attorney's fee as compensation for the time expended in the defense of the action to date. Accordingly, the Appellate Division found no valid reason for the Supreme
Court's granting plaintiff's motion with prejudice.
Student note: The
plaintiff is not required to demonstrate any basis for seeking a
voluntary discontinuance.
Case: American Tr. Ins. Co. v. Roberson, NY Slip Op 01144 (2d Dept. 2014).
Here is the decision.
Tomorrow's issue: Labor Law and a fall from a ladder.
