Opinion
Argued April 20, 2000.
July 26, 2000.
In an action, inter alia, to enjoin the defendant from soliciting the plaintiff's customers, the defendant appeals from (1) an order of the Supreme Court, Nassau County (McCaffrey, J.), dated February 2, 1999, which granted the plaintiff's motion for summary judgment dismissing the defendant's counterclaim sounding in abuse of process, and (2) an order of the same court dated May 13, 1999, which, inter alia, granted the plaintiff's application pursuant to CPLR 3217(b) to discontinue its action without prejudice.
Morey Herzog (John M. Denby, East Setauket, N.Y., of counsel), for appellant.
Carl F. Wand Associates, Huntington, N.Y. (Chad M. Powers of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the orders are affirmed, with one bill of costs.
In response to the plaintiff's prima facie showing of entitlement to summary judgment dismissing the defendant's counterclaim sounding in abuse of process, the defendant failed to raise a triable issue of fact with regard to that counterclaim (see, Board of Educ. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 N.Y.2d 397, 403; Haggerty v. Law Off. of Carole A. Burns, 244 A.D.2d 458). Further, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for a voluntary discontinuance of the action without prejudice (see, CPLR 3217[b]; Tucker v. Tucker, 55 N.Y.2d 378, 383; Citibank v. Nagrotsky, 239 A.D.2d 456, 457).