Opinion
November 16, 1994
Appeal from the Supreme Court, Herkimer County, Tenney, J.
Present — Lawton, J.P., Fallon, Wesley, Doerr and Davis, JJ.
Judgment unanimously reversed on the law without costs, motion granted and complaint withdrawn. Memorandum: Supreme Court abused its discretion in denying plaintiff's motion to discontinue the divorce action. A plaintiff should be permitted to discontinue an action at any time unless substantial rights of a defendant will be prejudiced (Matter of Arsenault v. Arsenault, 192 A.D.2d 1120; County of Westchester v. Becket Assocs., 102 A.D.2d 34, 49, affd 66 N.Y.2d 642; Rosenberg v. 3130 Grand Concourse, 23 A.D.2d 555; Louis R. Shapiro, Inc. v. Milspemes Corp., 20 A.D.2d 857). This action was not pending for an inordinate amount of time (cf., Ruppert v. Ruppert, 192 A.D.2d 925), and defendant can proceed on his counterclaim for divorce. No prejudice to defendant was identified other than frustration or delay, which are not types of prejudice that the law recognizes (see, Cooper v. Cooper, 103 Misc.2d 689, 695).