CPLR 3215(b)

Matter of Yonkers Firefighters v City of Yonkers, 2018 NY Slip Op 06751 [2d Dept. 2018]

The Supreme Court should not have denied the petitioners’ motion to discontinue prior to the indicated return date (see CPLR 3215[b]). Nevertheless, upon exercise of this Court’s authority to review the record, including the reply papers ultimately submitted by the petitioners, we find that the motion was properly denied (see Matter of Oneida Indian Nation of N.Y. v Pifer, 43 AD3d 579, 581). A motion to discontinue should not be granted where discontinuance is being sought in an apparent attempt to avoid the consequences of a potentially adverse determination (see Tucker v Tucker, 55 NY2d 378, 383-384; Matter of Catherine Commons, LLC v Town of Orangetown, 157 AD3d 785, 785; Marinelli v Wimmer, 139 AD3d 914, 915; New York Mtge. Trust, Inc. v Dasdemir, 116 AD3d 679Jamaica Hosp. Med. Ctr., Inc. v Oxford Health Plans [NY], Inc., 58 AD3d 686, 687; Matter of Oneida Indian Nation of N.Y. v Pifer, 43 AD3d 579Kaplan v Village of Ossining, 35 AD3d 816, 817). Here, the petitioners’ motion to discontinue was made after they received a favorable arbitration award concerning the very same issues raised in the CPLR article 78 proceeding, in an apparent attempt to evade a determination on the merits in the CPLR article 78 proceeding adverse to the favorable determination obtained in arbitration (see Matter of Oneida Indian Nation of N.Y. v Pifer, 43 AD3d 579).

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