Kallen v. Baron

[69] OPINION OF THE COURT Per Curiam. Order, entered on or about May 18, 2006, affirmed, without costs. We find no abuse of discretion in the grant of plaintiffs cross motion for leave to discontinue this action without prejudice. Inasmuch as the sole remaining basis of defendant’s pending summary judgment motion for dismissal is plaintiffs failure to comply with the notice provision of 22 NYCRR former 136.5, and considering that any dismissal on this ground would be without prejudice to the commencement of a new action upon compliance with the court rule (see Paikin v Tsirelman, 266 AD2d 136 [1999]), dismissal of the action with prejudice is unwarranted. We note that defendant no longer disputes that plaintiff filed the retainer agreement together with the statement of net worth (22 NYCRR 1400.3) and released the file in the matrimonial action to defendant.