Greenfield v. Brooke

444 In an action, inter alia, to enjoin the defendant from soliciting the plaintiffs customers, the defendant appeals from (1) an order of the Supreme Court, Nassau County (McCaffrey, J.), dated February 2, 1999, which granted the plaintiffs 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 plaintiffs application pursuant to CPLR 3217 (b) to discontinue its action without prejudice. Ordered that the orders are affirmed, with one bill of costs. In response to the plaintiffs 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. v Farmingdale Classroom Teachers Assn., 38 NY2d 397, 403; Haggerty v Law Off. of Carole A. Burns, 244 AD2d 458). Further, the Supreme Court providently exercised its discretion in granting the plaintiffs motion for a voluntary discontinuance of the action without prejudice (see, CPLR 3217 [b]; Tucker v Tucker, 55 NY2d 378, 383; Citibank v Nagrotsky, 239 AD2d 456, 457). O’Brien, J. P., McGinity, Luciano and Schmidt, JJ., concur.