Colon v New York Cent. Mut. Fire Ins. Co.
2003 NY Slip Op 51372(U)
Decided on October 2, 2003
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
Appellate Term, Second Department


[*1]
This opinion is uncorrected and will not be published in the Official Reports.

Digest-Index Classification:
Dismissal and Nonsuit—Discontinuance

Decided on October 2, 2003
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
NO. 2003-201 Q C

ELIZABETH COLON, Appellant,

against

NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Respondent.


[*2]

Appeal by plaintiff from so much of an order of the Civil Court, Queens County (P. Kelly, J.), entered November 8, 2002, as denied her motion for leave to discontinue the action without prejudice.


Order insofar as appealed from unanimously reversed without costs and plaintiff's motion to discontinue the action without prejudice granted.

Inasmuch as the record does not indicate that plaintiff is seeking to circumvent a prior order or decision, as well as the fact that no special circumstances exist herein, we find .that the court below improvidently exercised its discretion by denying plaintiff's motion for leave to discontinue the action without prejudice pursuant to CPLR 3217 (b) (see Sinopoli v Buda, 159 AD2d 464; see also People v Tucker, 55 NY2d 378, 383; Mathias v Daily News, 301 AD2d 503). Furthermore, we will not consider defendant's contention regarding so much of the order as denied its cross motion since it has not cross-appealed from said order (Hecht v City of New York, 60 NY2d 57; Horton Memorial Hosp. v Pantaleone, NYLJ, Mar. 18, 2002 [App Term, 9th & 10th Jud Dists]; cf. Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106).
Decision Date: October 02, 2003