Judge Timothy Lawliss
Plaintiffs sought a permanent injunction precluding defendants from operating a bed and breakfast on their property. They moved for summary judgment which was granted, but then vacated by the Appellate Division after defendants appealed, and the matter remanded. Plaintiffs filed a stipulation of discontinuance with prejudice, without prior court approval, signed only by their own counsel. Defendants rejected the discontinuance and sought a determination on their pending summary judgment motion claiming plaintiffs were not permitted to file a voluntary discontinuance without a court order under CPLR 3217. The court questioned if the pending summary judgment motion constituted a submission of the case to the court for a determination of fact, thereby precluding the granting of the instant motion. It answered in the negative finding it had authority to grant plaintiffs' motion allowing a discontinuance. The court also stated no prejudice was shown to defendants, nor other improper consequences that would stem from the discontinuance. It noted no special circumstances existed warranting compelling plaintiffs to litigate the matter, especially as defendants sold the property at issue. Thus, plaintiffs' motion for a discontinuance was granted.