McMahan v McMahan

2009 NY Slip Op 04165 [62 AD3d 619]

May 28, 2009

Appellate Division, First Department

As corrected through Wednesday, July 1, 2009

Elena McMahan, Respondent, v Bruce McMahan,Appellant, et al., Defendants.

—[*1]Isaacs & Evans, LLP, New York (Leigh R. Isaacs of counsel), for appellant.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered July 14, 2008,which, sua sponte, discontinued the action without prejudice, unanimously modified, on the lawand the facts, to discontinue the action with prejudice as against defendant-appellant, andotherwise affirmed, without costs.

As against appellant, the action should not have been discontinued without prejudice whereplaintiff's notice of discontinuance was untimely under CPLR 3217 (a) (see Citidress II Corp. v Hinshaw &Culbertson LLP, 59 AD3d 210, 211 [2009]), and was apparently served in order toavoid an adverse decision on a pending motion to dismiss the complaint with prejudice and toenable plaintiff to raise the claims she makes herein in another pending action (see NBNBroadcasting v Sheridan Broadcasting Networks, 240 AD2d 319 [1997]). The foregoingrenders academic appellant's claim that the motion court should have granted its motion todismiss the complaint on default (see 176-60 Union Turnpike v Howard Beach FitnessCtr., 271 AD2d 327, 328 [2000]). Concur—Gonzalez, P.J., Mazzarelli, Buckley,Renwick and Abdus-Salaam, JJ.