Opinion
2014-463 Q C
10-19-2015
WALDEN–BAILEY CHIROPRACTIC AS ASSIGNEE OF Harvey SIEGEL, Respondent, v. ERIE INSURANCE COMPANY, Appellant.
The Law Office of Robyn M. Brilliant, P.C., New York City (Robyn M. Brilliant of counsel), for appellant.
The Law Office of Robyn M. Brilliant, P.C., New York City (Robyn M. Brilliant of counsel), for appellant.
Opinion
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), dated January 7, 2014. The order denied the branch of defendant's motion seeking to vacate a prior order of the same court granting plaintiff's oral application to discontinue the action without prejudice, or, in the alternative, to modify the prior order by providing that the discontinuance was with prejudice, and, in effect, implicitly denied the branches of defendant's motion seeking attorney's fees and sanctions.
ORDERED that the order is modified by providing that the branch of defendant's motion seeking attorney's fees is granted; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the reasonable amount of attorney's fees incurred by defendant up to the date of discontinuance.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's oral application for a discontinuance without prejudice was granted by the Civil Court (Maureen A. Healy, J.) on February 6, 2013. Thereafter, defendant moved to vacate the February 6, 2013 order, or, in the alternative, to modify the prior order by providing that the discontinuance was with prejudice, and for attorney's fees and sanctions. By order dated January 7, 2014, the Civil Court (Cheree A. Buggs, J.) denied the branch of defendant's motion seeking to vacate or modify the February 6, 2013 order and implicitly denied the branches of defendant's motion seeking attorney's fees and sanctions.
Generally, courts are reluctant to compel a party to litigate (see DuBray v. Warner Bros. Records, 236 A.D.2d 312, 314, 653 N.Y.S.2d 592 1997 ), and it is well settled that courts have the discretion to grant a motion for discontinuance, without prejudice, if no special circumstances exist, such as prejudice to a substantial right of the defendant or other improper consequences (see Tucker v. Tucker, 55 N.Y.2d 378, 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050 1982; GMAC Mtge., LLC v. Bisceglie, 109 A.D.3d 874, 876, 973 N.Y.S.2d 225 2013; Wells Fargo Bank, N.A. v. Fisch, 103 A.D.3d 622, 622, 959 N.Y.S.2d 260 2013; Mathias v. Daily News, 301 A.D.2d 503, 504, 752 N.Y.S.2d 896 2003; Valladares v. Valladares, 80 A.D.2d 244, 257–258, 438 N.Y.S.2d 810 1981, mod. on other grounds sub nom. Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683, 434 N.E.2d 1050). “Unlike a motion for change of venue which involves the affirmative selection of another forum, a court in granting discontinuance merely makes it possible for the action to be brought elsewhere” (Urbonowicz v. Yarinsky, 290 A.D.2d 922, 923, 737 N.Y.S.2d 398 2002 [citations omitted] ). However, motions for discontinuance should not be used to enable plaintiffs to “do indirectly what they are not permitted to do directly” (Katz v. Austin, 271 App.Div. 217, 218, 62 N.Y.S.2d 912 1946; see also DuBray v. Warner Bros. Records, 236 A.D.2d at 314, 653 N.Y.S.2d 592).
In support of the branch of its motion seeking to vacate or modify the February 6, 2013 order, defendant did not provide any information regarding the arguments that had been made before the Civil Court in support of, and in opposition to, plaintiff's oral application. Despite the fact that plaintiff subsequently commenced an action against defendant in the Civil Court, Bronx County, to recover the same no-fault benefits as sought herein, defendant's argument—that plaintiff sought the discontinuance because it did not have a witness to provide testimony establishing its billing and wanted to commence an action in the Civil Court, Bronx County, where a witness allegedly is not required to establish billing—is not supported by the record, which indicates that a trial had yet to commence in the case at bar. The record does not establish that plaintiff expressed its intention to discontinue the Queens County action in order to commence an action in Bronx County (cf. DuBray v. Warner Bros. Records, 236 A.D.2d at 314, 653 N.Y.S.2d 592). Consequently, defendant did not establish that plaintiff indirectly sought to do what it was not permitted to do directly, i.e. change venue, when it moved for discontinuance.
Notwithstanding the foregoing, inasmuch as it is uncontroverted that defendant had defended the instant action for three years during which time it had made numerous motions, engaged in discovery practice, and repeatedly appeared in court, defendant is entitled to recover the reasonable attorney's fees it incurred in its defense of the instant action up to the date of discontinuance, in order to eliminate any possible prejudice attributable to the discontinuance (see Carter v. Howland Hook Housing Co., Inc., 19 A.D.3d 146, 146–147, 797 N.Y.S.2d 11 2005 ). We pass on no other issue.
Accordingly, the order is modified by providing that the branch of defendant's motion seeking attorney's fees is granted; as so modified, the order is affirmed, and the matter is remitted to the Civil Court for a determination of the reasonable amount of attorney's fees incurred by defendant up to the date of discontinuance.