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McMAHAN v. McMAHAN

62 A.D.3d 619 (2009)

879 N.Y.S.2d 448

ELENA McMAHAN, Respondent, v. BRUCE McMAHAN, Appellant, et al., Defendants.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 28, 2009.

As against appellant, the action should not have been discontinued without prejudice where plaintiff's notice of discontinuance was untimely under CPLR 3217 (a) (see Citidress II Corp. v Hinshaw & Culbertson LLP, 59 A.D.3d 210, 211 [2009]), and was apparently served in order to avoid an adverse decision on a pending motion to dismiss the complaint with prejudice and to enable plaintiff to raise the claims she makes herein in...

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