Casey v. Custom Crushing & Materials, Inc.

In an [727] action to recover damages, inter alia, for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Glover, J.), dated July 5, 2002, as denied that branch of their cross motion which was for leave to voluntarily discontinue the action, without prejudice, pursuant to CPLR 3217 (b). Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. The Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ cross motion which was for leave to voluntarily discontinue the action, without prejudice, pursuant to CPLR 3217 (b) (see Mathias v Daily News, 301 AD2d 503 [2003]). A plaintiff should not be permitted to discontinue an action without prejudice for the purpose of avoiding an adverse order of the court (see Mathias v Daily News, supra). Altman, J.P., S. Miller, McGinity, Adams and Mastro, JJ., concur.