Discontinuance (CPLR 3217)October 30, 2015

Walden-Bailey Chiropractic v Erie Ins. Co., 2015 NY Slip Op 25353 (App. Term 2d Dept. 2015)

“Generally, courts are reluctant to compel a party to litigate (see DuBray v Warner Bros. Records, 236 AD2d 312, 314 [1997]), and it is well settled that courts have the discretion to grant a motion for discontinuance, without prejudice, if no special circumstances exist, such as prejudice to a substantial right of the defendant or other improper consequences”

“Notwithstanding the foregoing, inasmuch as it is uncontroverted that defendant had defended the instant action for three years during which time it had made numerous motions, engaged in discovery practice, and repeatedly appeared in court, defendant is entitled to recover the reasonable attorney’s fees it incurred in its defense of the instant action up to the date of discontinuance, in order to eliminate any possible prejudice attributable to the discontinuance”

This is interesting because Walden Bailey is a Buffalo facility.  The fact that an action was brought in Queens and later in Bronx should cause eyebrows to raise a bit.  Mine did.  What is interesting is the portion about attorney fees.  We know that is allowed.  The Court has delimited the extent of the attorney fees: “commencement to date of discontinuance”

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