Bondy v. Bondy

Appeal by defendant from an order of the Supreme Court, Westchester County, dated May 20, 1968, which granted his motion to eliminate his third counterclaim, but only on condition that said counterclaim be dismissed with prejudice. Order modified, on the law and in the exercise of discretion, by striking from the ordering paragraph everything following the word "granted” and :by substituting therefor the following: “ on condition that defendant stipulate that the third counterclaim set forth in his original answer is discontinued with prejudice.” As so modified, order affirmed, without costs. Ho questions of fact have been considered. In our opinion, that portion of the order which offered to defendant the option of going forward with the third counterclaim or abandon*630ing it entirely is proper. The reason offered by defendant for discontinuing the counterclaim is specious and plaintiff has a substantial interest in having it proceed to final determination (Matter of Cowles, 22 A D 2d 365, 370). However, that portion of the order which purports to effect a summary dismissal of the counterclaim is improper and should be stricken (cf. Rosenberg v. 3130 Grand Concourse, 23 A D 2d 555). Christ, Acting P. J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.