Bonfante v. Hadar Homes, Inc.

In a negligence action to recover damages for personal injuries, etc., defendant Hadar Homes, Inc., appeals from an order of the Supreme Court, Kings County (Bernstein, J.), dated October 23, 1980, which, upon certain conditions, granted plaintiffs’ motion pursuant to CPLR 3217 (subd [b]) to voluntarily discontinue the action. Order reversed, without costs or disbursements, and motion denied. On a prior appeal in this action (Bonfante v Hadar Homes, 74 AD2d 887), this court reversed an order granting plaintiffs leave to amend their complaint and bill of particulars. This ruling constitutes a substantial right which has accrued to defendant Hadar and should not now be abrogated by allowing plaintiffs to discontinue the action. Moreover, allowing a discontinuance would be tantamount to allowing plaintiffs to disregard the law of the case as established on the earlier appeal (see Standford v Cayuga Linen & Cotton Mills, 171 Misc 1001, 1003, affd 261 App Div 877), and, at this juncture, would be prejudicial to the defendant Hadar (see Bonfante v Hadar Homes, 74 AD2d 887, supra). Accordingly, Special Term’s granting of the motion constituted an abuse of discretion. Gulotta, J.P., Margett, Weinstein and Thompson, JJ., concur.