Expedite Video Conf. Servs. v. Botello

29 Citing cases

  1. Wells Fargo Bank, N.A. v. Chaplin

    107 A.D.3d 881 (N.Y. App. Div. 2013)   Cited 34 times

    The Supreme Court also properly denied that branch of Chaplin's subsequent motion which was for leave to renew, as she failed to set forth new facts which would warrant a change the court's prior determinations ( seeCPLR 2221[e] ). The determination of a motion for leave to voluntarily discontinue an action pursuant to CPLR 3217(b) rests within the sound discretion of the court ( see Expedite Video Conferencing Servs., Inc. v. Botello, 67 A.D.3d 961, 961, 890 N.Y.S.2d 82). “ ‘In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted’ ”

  2. Blackwell v. Mikevin ManageMent III, LLC

    88 A.D.3d 836 (N.Y. App. Div. 2011)   Cited 41 times

    “In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted” ( Expedite Video Conferencing Servs., Inc. v. Botello, 67 A.D.3d 961, 961, 890 N.Y.S.2d 82; see Tucker v. Tucker, 55 N.Y.2d 378, 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050). Here, the Supreme Court improvidently exercised its discretion in denying the plaintiffs' cross motion pursuant to CPLR 3217(b), in effect, to voluntarily discontinue the action insofar as commenced on behalf of the infant plaintiff because there was no showing that the defendant would be prejudiced by such discontinuance ( see Expedite Video Conferencing Servs., Inc. v. Botello, 67 A.D.3d 961, 890 N.Y.S.2d 82; Parraguirre v. 27th St. Holding, LLC, 37 A.D.3d 793, 794, 831 N.Y.S.2d 460; Citibank v. Nagrotsky, 239 A.D.2d 456, 658 N.Y.S.2d 966).

  3. Emigrant Mortg. Co. v. Carrera

    126 A.D.3d 853 (N.Y. App. Div. 2015)   Cited 8 times

    "In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted" (Wells Fargo Bank, N.A. v Chaplin, 107 AD3d at 883 [internal quotation marks omitted]). Contrary to the appellants' contention, the Supreme Court providently exercised its discretion in granting the plaintiff's motion, as there was no showing of special circumstances (see Wells Fargo Bank, N.A. v Chaplin, 107 AD3d at 883; Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d 961).

  4. Baez v. Parkway Mobile Homes, Inc.

    125 A.D.3d 905 (N.Y. App. Div. 2015)   Cited 19 times

    "A motion for leave to discontinue an action without prejudice should be granted unless there are reasons which would justify its denial" (GMAC Mtge., LLC v Bisceglie, 109 AD3d 874, 876). Such a determination "rests within the sound discretion of the court," and the motion should be granted "[i]n the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences" (Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d 961, 961), including an adverse determination of the court (see Kaplan v Village of Ossining, 35 AD3d 816, 816-817), or the consequences of a potentially adverse determination (see e.g. GMAC Mtge., LLC v Bisceglie, 109 AD3d at 876; Rosenfeld v Renika Pty. Ltd., 84 AD3d 703, 703; McMahan v McMahan, 62 AD3d 619, 620; Matter of Oneida Indian Nation of N.Y. v Pifer, 43 AD3d 579, 580; Venture I, Inc. v Voutsinas, 8 AD3d 475, 475; Casey v Custom Crushing & Materials, 309 AD2d 726, 727; see also Tucker v Tucker, 55 NY2d 378). Here, the plaintiffs cross-moved, inter alia, for leave to discontinue the action without prejudice in response to Parkway's separate motion pursuant to CPLR 3216 to dismiss the complaint on the ground that the plaintiffs had failed to timely respond to its 90-day notice.

  5. GMAC Mortgage, LLC v. Bisceglie

    109 A.D.3d 874 (N.Y. App. Div. 2013)   Cited 23 times

    A motion for leave to discontinue an action without prejudice should be granted unless there are reasons which would justify its denial ( see Wells Fargo Bank v. Fisch, 103 A.D.3d 622, 959 N.Y.S.2d 260). Such a determination “rests within the sound discretion of the court,” and the motion should be granted “[i]n the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences” ( Expedite Video Conferencing Servs., Inc. v. Botello, 67 A.D.3d 961, 961, 890 N.Y.S.2d 82), including an adverse determination of the court ( see Kaplan v. Village of Ossining, 35 A.D.3d 816, 827 N.Y.S.2d 278) or the consequences of a potentially adverse determination ( see e.g. Rosenfeld v. Renika Pty. Ltd., 84 A.D.3d 703, 923 N.Y.S.2d 328; McMahan v. McMahan, 62 A.D.3d 619, 879 N.Y.S.2d 448;Matter of Oneida Indian Nation of N.Y. v. Pifer, 43 A.D.3d 579, 840 N.Y.S.2d 672;Casey v. Custom Crushing & Materials, 309 A.D.2d 726, 765 N.Y.S.2d 268;see also Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683, 434 N.E.2d 1050). Here, while the plaintiff initially claimed that it was seeking to discontinue the instant action due to an unspecified “issue with the default notification,” it did not refute Bisceglie's allegation that it was the subject of an investigation into its improper use of a limited signing officer who signed affidavits without knowledge as to the truth of their contents.

  6. Phx. Mech. Corp. v. London

    38 Misc. 3d 45 (N.Y. App. Div. 2012)   Cited 2 times

    The determination of a motion for leave to voluntarily discontinue a counterclaim, without prejudice, pursuant to CPLR 3217(b), rests within the sound discretion of the court ( see Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683, 434 N.E.2d 1050 [1982];Expedite Video Conferencing Servs., Inc. v. Botello, 67 A.D.3d 961, 890 N.Y.S.2d 82 [2009] ). Where the discontinuance of a claim would prejudice the rights of another party, it is within the discretion of the court to deny the application to discontinue ( see Kaplan v. Village of Ossining, 35 A.D.3d 816, 827 N.Y.S.2d 278 [2006];St. James Plaza v. Notey, 166 A.D.2d 439, 560 N.Y.S.2d 670 [1990] ).

  7. Muy v. Robert Bosch Power Tool Corp.

    80 A.D.3d 681 (N.Y. App. Div. 2011)   Cited 2 times

    Ordered that the matter is remitted to the Supreme Court, Queens County, to convert the cross claims asserted by the defendants Saga House Condominium and Charles Greenthal Management against the appellants to a third-party action, and to amend the caption accordingly. "In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted" ( Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d 961; see Tucker v Tucker, 55 NY2d 378, 383). Here, the Supreme Court improvidently exercised its discretion in denying the appellants' motion pursuant to CPLR 3217 (b), in effect, to enforce a stipulation pursuant to which the plaintiff agreed to voluntarily discontinue the action insofar as asserted against them because there was no showing that the defendants Saga House Condominium and Charles Greenthal Management would be prejudiced by such discontinuance, since their cross claims will continue as a third-party action ( see Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d at 961; Parraguirre v 27th St. Holding, LLC, 37 AD3d 793, 794; Citibank v Nagrotsky, 239 AD2d 456, 457).

  8. U.S. Bank v. Nicholson

    2024 N.Y. Slip Op. 50503 (N.Y. Sup. Ct. 2024)

    On or about April 30, 2014, the justice assigned to the 2008 action decided plaintiff's contested motion to discontinue that action. There, the order set forth that "[i]n the absence of special circumstances, such as prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted" (Order [Dkt. 55] citing Expedite Video Conferencing Servs. Inc. v Botello, 67 A.D.3d 961 [2d Dept 2009]). When that justice granted plaintiff's contested motion to discontinue, it found that no prejudice to a substantial right of defendant and that no improper consequences occurred.

  9. DeShong v. LaserKlinic, LLC

    2022 N.Y. Slip Op. 30112 (N.Y. Sup. Ct. 2022)

    Instead, it is plaintiffs decision to move for discontinuance and the only real consequence would be that plaintiff is barred from seeking any restitution from the defendant Dr. Acaru, as that defendant has been released as per GOL §15-303. See Expedite Video Conferencing Services. Inc. v Botello. 67 A.D.3d 961 [2d Dept 2009]; Tucker v Tucker, 55 N.Y.2d at 378.

  10. Padilla v. Touro Coll.

    71 Misc. 3d 1229 (N.Y. Sup. Ct. 2021)

    The determination of a motion for leave to voluntarily discontinue an action pursuant to CPLR 3217 (b) rests within the sound discretion of the court ( seeExpedite Video Conferencing Servs., Inc. v Botello , 67 AD3d 961, 961 [2009] ). " ‘In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted’ " ( Blackwell v Mikevin Mgt. III, LLC , 88 AD3d 836, 837 [2011], quoting Expedite Video Conferencing Servs. Inc. v Botello , 67 AD3d at 961 ])