Cohen v. Cohen

—Order, Supreme Court, New York County (David Saxe, J.), entered June 11, 1993, which, in an action for divorce commenced by service of a summons only, denied defendant’s motion to vacate plaintiffs notice of voluntary discontinuance, unanimously affirmed, without costs. Vacatur of plaintiffs notice of discontinuance was properly denied on the ground that even if " 'devious or unfair conduct’ ” may, if "particularly egregious”, estop a party from asserting its absolute and unconditional right to discontinue a claim before service of the pleading asserting it, no such showing was made (Giambrone v Giambrone, 140 AD2d 206, 207). Concur—Ross, J. P., Asch, Rubin, Nardelli and Tom, JJ.