New York Downtown Hosp. v Terry, 2011 NY Slip Op 00253 [80 AD3d 493]

January 18, 2011

Appellate Division, First Department

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Proskauer Rose LLP, New York (Charles S. Sims of counsel), for appellants.

Gallet Dreyer & Berkey, LLP, New York (David T. Azrin of counsel), for respondents.

Amended order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 25, 2010, which, to the extent appealed from, conditioned the grant of plaintiffs’ application for a voluntary discontinuance of their action on their payment of the sum of $10,000 to defendants, unanimously modified, in the exercise of discretion, to the extent of striking the payment requirement, and otherwise affirmed, without costs.

Contrary to plaintiffs’ assertions, it is within a court’s discretion to condition an application for a voluntary discontinuance made pursuant to CPLR 3217 (b) upon the movant paying the adverse party’s legal fees, costs, and disbursements ( see Beigel v Cohen , 158 AD2d 339 [1990]). However, under the circumstances presented, the court should have allowed plaintiffs to discontinue their libel claims without any condition ( see Townhouse Co., LLC v Peters , 17 Misc 3d 133[A], 2007 NY Slip Op 52111[U] [2007]). Concur—Gonzalez, P.J., Mazzarelli, Moskowitz, Acosta and RomÁn, JJ..