Opinion
2000-11090, 2001-04267
Submitted December 14, 2001.
January 22, 2002.
In an action, inter alia, for a judgment declaring that the plaintiffs' apartments are rent stabilized, the plaintiffs appeal from (1) stated portions of an order of the Supreme Court, Kings County (Jones, J.), dated October 23, 2000, which, inter alia, granted that branch of the defendant's motion which was to dismiss the seventh cause of action alleging breach of the warranty of habitability, and (2) an order of the same court dated March 29, 2001, which denied their motion pursuant to CPLR 3217(b) to discontinue their action without prejudice.
Collins, Dobkin Miller, LLP, New York, N.Y. (Seth A. Miller of counsel), for appellants.
Kucker Bruh, LLP, New York, N.Y. (Patrick K. Munson of counsel), for respondents.
Before: SANDRA J. FEUERSTEIN, J.P., GABRIEL M. KRAUSMAN, WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT, JJ.
ORDERED that the order dated October 23, 2000, is affirmed insofar as appealed from; and it is further,
ORDERED that the order dated March 29, 2001, is affirmed; and it is further,
ORDERED that the respondents are awarded one bill of costs.
The plaintiffs contend that the Supreme Court improperly denied their motion for a voluntary discontinuance of the instant action. The authority of a court to grant or to deny an application for voluntary discontinuance of a litigation made pursuant to CPLR 3217(b) is within its sound discretion (see, Tucker v. Tucker, 55 N.Y.2d 378, 383; Great Western Bank v. Terio, 200 A.D.2d 608, 609). In the instant case, the Supreme Court providently exercised its discrection in denying the plaintiffs' motion to discontinue the action, as the defendants were able to establish prejudice to them if the action was discontinued (see, CPLR 3217[b]; Tucker v. Tucker, supra, at 383 Great Western Bank v. Terio, supra; Matter of Carla L. v. Terry M., 178 A.D.2d 881; State of New York v. Hubbard, 126 A.D.2d 717, 718).
The plaintiffs' remaining contentions are without merit.
FEUERSTEIN, J.P., KRAUSMAN, FRIEDMANN and SCHMIDT, JJ., concur.