Summary
In Bateholts v Russell (35 A.D.2d 761), infant plaintiffs were allowed to discontinue their lawsuit until termination of their mother's suit in order to take possible advantage of a change in the common law as to intrafamily torts which change had come about by Court of Appeals decision after the infants' suit had commenced.
Summary of this case from Cooper v. CooperOpinion
October 28, 1970
Appeal from an order of the Supreme Court at Special Term, entered May 22, 1969 in Saratoga County, which granted plaintiffs' motions for permission to dismiss their actions without prejudice, and not on the merits. (CPLR 3217, subd. [b].) On May 8, 1965 the infant plaintiffs, Ruth Ann Bateholts and Robert Bateholts, Jr., and their mother, Charlene Bateholts, were passengers in an automobile owned and operated by the father of the infants and the husband of Charlene Bateholts, which automobile collided with an automobile owned and operated by defendant Clarence H. Russell. As a result of the accident, the infants and their mother sustained personal injuries, and actions were commenced on or about June 2, 1966 against defendant Russell to recover for their personal injuries. On July 9, 1969 the Court of Appeals decided the case of Gelbman v. Gelbman ( 23 N.Y.2d 434) which decision abolished the defense of intrafamily tort immunity for nonwillful torts, and further provided that its decision should be applied retrospectively to matters which had not gone to final judgment. The infant plaintiffs, by their motions, sought to defer the actions against their father until the action of their mother against defendant Russell had been resolved. One of the basic reasons for the motions was the fact that the mother could not recover against her husband's liability insurance carrier, since a judgment in her favor against her husband was excluded under the liability policy covering the vehicle owned and operated by her husband. The order of the court was a reasonable exercise of discretion and should be affirmed. If the actions of the infants against their father and defendant Russell were consolidated and tried together with the action of their mother against defendant Russell alone, the submissions of such actions to a jury for determination would require explanations to avoid confusion, and possibly to explain the exclusion provisions of the liability insurance. If the principle decided by the Gelbman case had been known when these actions were commenced, the infant plaintiffs might have elected at that time to wait until their mother's action had been determined. The purpose of these motions is to restore them to that status quo. It is within the discretion of the court to grant or refuse leave to discontinue in the light of special circumstances in a particular case. ( De Laurentis v. Bercowitz, 27 A.D.2d 869.) The court properly determined that the infant plaintiffs should be permitted to discontinue their actions without prejudice, and not on the merits, and without terms or conditions. Order affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.