Opinion
March 28, 1994
Appeal from the Supreme Court, Kings County (Yoswein, J.).
Ordered that the order dated April 26, 1993, is affirmed; and it is further,
Ordered that the appeals from the orders dated February 28, 1992, May 19, 1992, and May 20, 1992, are dismissed as academic in light of our disposition of the appeal from the order dated April 26, 1993; and it is further,
Ordered that the plaintiffs are awarded one bill of costs.
The determination of a motion for discontinuance rests within the sound discretion of the court, and is ordinarily granted absent prejudice to a substantial right of the defendant (see, Tucker v. Tucker, 55 N.Y.2d 378; County of Westchester v. Becket Assocs., 102 A.D.2d 34, affd 66 N.Y.2d 642; Brockman v. Turin, 130 A.D.2d 616). Further, a court may grant such a motion "upon terms and conditions, as the court deems proper" (CPLR 3217 [b]). Based on the record before us, we find that the Supreme Court did not improvidently exercise its discretion in granting a discontinuance of this action with prejudice without awarding the appellant costs, disbursements, and attorneys' fees.
In view of our affirmance of the order which permitted the plaintiffs to discontinue their action with prejudice as against all defendants, the issue whether the appellant Getty Petroleum Corporation successfully demonstrated its entitlement to summary judgment, either with respect to the plaintiffs' main claims or with respect to the codefendants' various cross claims, has been rendered academic. Bracken, J.P., O'Brien, Pizzuto and Altman, JJ., concur.