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Posted: June 24, 2015

Court Grants Plaintiff’s Motion to Discontinue Action Without Prejudice

On June 8, 2015, Justice Emerson of the Suffolk County Commercial Division issued a decision in Tamai v. Suffolk Anesthesiology Assoc., P.C., 2015 NY Slip Op. 50885(U), allowing a plaintiff to discontinue an action without prejudice.

In Tamai, the plaintiff moved to discontinue her lawsuit without prejudice. Despite the defendant’s opposition to the dismissal being without prejudice, the court granted the motion, explaining:

Generally, a party cannot be compelled to litigate a claim; and, absent special circumstances, a motion for leave to discontinue should be granted without prejudice. A plaintiff should be permitted to discontinue an action at any time unless substantial rights have accrued or an adversary’s rights would be prejudiced thereby. Also, the court should consider the stage that the litigation has reached. The later the stage, the more the court should scrutinize the plaintiff’s motives.

Here, the litigation is still in its infancy and substantial rights have not yet accrued. The hearing has not been held, and the court has not decided any of the pending motions. Although discovery was initially expedited, discovery was stayed after the court learned that the plaintiff wished to discontinue the action. Any delay, frustration, or expense incurred by [the defendant] in the preparation of its contemplated defense does not constitute prejudice warranting denial of the motion. Moreover, the record does not reflect that the proposed discontinuance is based on any untoward motive or that it is being sought to gain an unfair litigation advantage. Rather, the record reflects that the plaintiff wishes to discontinue the action due to changed circumstances, i.e., she is no longer seeking employment that would require her to work at any of the four hospitals named in the restrictive covenant.

(Internal quotations and citations omitted).

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