Consolidated appeal from an order of the District Court of Suffolk County, Third District (C. Steven Hackeling, J.), dated August 24, 2005. The order granted plaintiff's motion to discontinue the actions without prejudice and denied defendant's cross motion to dismiss the actions.

Order affirmed without costs.

The parties were divorced in June of 1999. Shortly after entry of the judgment of divorce, they agreed to modify the terms of a stipulation of settlement to provide that defendant would pay plaintiff $1,900 per month for 60 months, commencing in August of 1999. In a prior action commenced in the District Court, plaintiff sought to recover from defendant unpaid monthly installments due under the stipulation from March through August of 2000. Judgment in the sum of $11,400 was entered in plaintiff's favor on July 11, 2002. This court modified the judgment to the extent of remanding for an award of interest on the judgment amount (see Nappy v Nappy, 2003 NY Slip Op 51332[U] [App Term, 9th & 10th Jud Dists]).

On or about September 9, 2002, plaintiff commenced three actions in the District Court, each to recover the sum of $13,300 allegedly due on the promissory note. In the first action, plaintiff sought to recover amounts due from September 1, 2000 through March 1, 2001; in the second action, she sought to recover amounts due from April 1, 2001 through October 1, 2001; and in the third action, she sought to recover amounts due from November 1, 2001 through June 1, 2002. Pursuant to a motion by defendant seeking consolidation and dismissal, the court consolidated the actions for purposes of trial only, but declined to dismiss upon the specific [*2]grounds urged by defendant. The court noted that since plaintiff had split a single cause of action into three, she could obtain judgment in one action only and that the other two actions would be subject to dismissal upon motion by defendant based thereon. After the matter was placed on the trial calendar, plaintiff moved, by notice of motion dated June 15, 2005, for a discontinuance without prejudice, pursuant to CPLR 3217 (b), on the ground that another action was pending in that, in December of 2003, she had commenced an action in Supreme Court, Suffolk County, in which she sought all the installments due on the promissory note from September 2000 through July 2004. Defendant cross-moved for dismissal on the ground that plaintiff had improperly split a single cause of action, and otherwise sought denial of plaintiff's motion to discontinue "without prejudice" in favor of a disposition "with prejudice." The court below granted plaintiff's motion to discontinue "without prejudice" and denied defendant's motion to dismiss "with prejudice."

The determination of a motion for leave to voluntarily discontinue an action without prejudice pursuant to CPLR 3217 (b) rests within the court's sound discretion, and, in the absence of special circumstances, such as prejudice to an adverse party, or other improper consequences, a motion to discontinue should be granted (see Mathias v Daily News, 301 AD2d 503 [2003]; Burnham Serv. Corp. v National Council on Compensation Ins., 288 AD2d 31 [2001]). In the instant case, we find that it was not an improvident exercise of discretion for the court below to have granted plaintiff's motion for a voluntary discontinuance "without prejudice."

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 30, 2006