Michael v. Michael

¶1—Judgment unanimously reversed on the law without costs, motion granted and complaint withdrawn. Memorandum: Supreme Court abused its discretion in denying plaintiffs motion to discontinue the divorce action. A plaintiff should be permitted to discontinue an action at any time unless substantial rights of a defendant will be prejudiced (Matter of Arsenault v Arsenault, 192 AD2d 1120; County of Westchester v Becket Assocs., 102 AD2d 34, 49, affd 66 NY2d 642; Rosenberg v 3130 Grand Concourse, 23 AD2d 555; Louis R. Shapiro, Inc. v Milspemes Corp., 20 AD2d 857). This action was not pending for an inordinate amount of time (cf., Ruppert v Ruppert, 192 AD2d 925), and defendant can proceed on his counterclaim for divorce. No prejudice to defendant was identified other than frustration or delay, which are not types of prejudice that the law recognizes (see, Cooper v Cooper, 103 Misc 2d 689, 695). (Appeal from Judgment of Supreme Court, Herkimer County, Tenney, J.—Divorce.) Present—Lawton, J. P., Fallon, Wesley, Doerr and Davis, JJ.