Rosenfeld v Renika Pty. Ltd.

2011 NY Slip Op 04534 [84 AD3d 703]

May 31, 2011

Appellate Division, First Department

As corrected through Wednesday, July 6, 2011

Steven Rosenfeld et al., Respondents, v Renika Pty. Ltd. etal., Appellants.

—[*1]Phillips Nizer LLP, New York (Michael S. Fischman of counsel), forappellants.

Order, Supreme Court, New York County (James A. Yates, J.), entered June 11, 2010, whichdenied defendants' motion to dismiss the complaint with prejudice as moot in light of plaintiffs'notice of voluntary discontinuance without prejudice, unanimously reversed, on the law, withcosts and the motion granted. The Clerk is directed to enter judgment in defendants' favordismissing the complaint.

Plaintiffs' notice of voluntary discontinuance was untimely under CPLR 3217 (a), and wasapparently served to avoid an adverse decision on the pending motion to dismiss the complaintwith prejudice (see McMahan vMcMahan, 62 AD3d 619, 620 [2009]; Citidress II Corp. v Hinshaw & Culbertson LLP, 59 AD3d 210, 211[2009]; NBN Broadcasting v Sheridan Broadcasting Networks, 240 AD2d 319 [1997]).Concur—Mazzarelli, J.P., Friedman, Catterson, Manzanet-Daniels and RomÁn, JJ.