McCarty v. Alegre-Levine

Appeal from an order of the Supreme Court (Connor, J.), entered August 20, 1990 in Greene County, which, inter alia, conditionally granted plaintiffs’ motion to remove certain plaintiffs as parties to this action.

Plaintiffs, 83 property owners in a subdivision known as Wildwing Park in the Town of Catskill, Greene County, commenced this action against defendant, who is also a property owner in Wildwing Park, alleging that defendant’s use of her property as a medical office violated a restrictive covenant in the parties’ deeds. After some attempts at settling the matter, and after defendant had served a notice for examination before trial to depose all plaintiffs, plaintiffs moved for permission to discontinue the action on behalf of 72 of the plaintiffs. The basis for the motion was that five of the plaintiffs were deceased and that it had "proven unwieldy in the extreme for the court and the lawyers to manage so many plaintiffs”. Supreme Court granted the motion unconditionally as to the five deceased plaintiffs, but otherwise conditioned discontinuance as to the other plaintiffs upon the submission by each named plaintiff to an examination before trial and the payment by each named plaintiff of $50 in costs to defendant. Plaintiffs appeal from the order.

CPLR 3217 (b) authorizes a court to permit voluntary discontinuance upon terms and conditions. The authority to *754grant or deny a motion pursuant to CPLR 3217 (b) is within the sound discretion of the court and includes the power to impose appropriate terms and conditions on discontinuance (Tucker v Tucker, 55 NY2d 378, 383-384, n 2). We find no abuse of discretion in Supreme Court’s imposition of conditions requiring plaintiffs to submit to examinations before trial (see, Felica v St. Agnes Hasp., 65 AD2d 388, 395) and to pay costs (see, Beigel v Cohen, 158 AD2d 339, 340).

Mahoney, P. J., Mikoll, Levine and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.