Opinion
December 11, 1989
Appeal from the Supreme Court, Westchester County (Buell, J.).
Ordered that the order dated September 14, 1988, is modified by deleting the provision thereof reinstating the arbitration award; as so modified, the order is affirmed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the defendant is awarded one bill of costs.
The plaintiff commenced this action in 1984 to recover approximately $5,000 in damages allegedly caused by the defendant's failure to correct certain defects in the construction of an indoor swimming pool. A note of issue was filed in October 1985 and the matter was referred to an arbitration panel pursuant to 22 N.Y.CRR part 28. The plaintiff subsequently brought two successive motions to amend the complaint to increase the ad damnum clause and to remove the matter from arbitration. Both motions were denied due to the insufficiency of the plaintiff's supporting affidavits. In July 1987 after the arbitration panel decided the matter in the defendant's favor, the plaintiff demanded a trial de novo pursuant to 22 NYCRR 28.12. The trial was adjourned from May to September 1988 at the plaintiff's request. On the trial date, the plaintiff requested that the case be marked off the calendar and the note of issue vacated subject to reinstatement at a future time. When the court denied that motion, the plaintiff requested that the complaint be dismissed without prejudice. The court dismissed the complaint with prejudice, reinstated the arbitration award and severed the defendant's counterclaim for attorney's fees.
Contrary to the plaintiff's contention, we find that dismissal of the complaint with prejudice was warranted under the circumstances. CPLR 3217 (b) permits a court to impose conditions on granting a motion for a discontinuance. Prejudice to the defendant and other special circumstances will preclude granting a motion for a discontinuance without prejudice (see, Valladares v Valladares, 80 A.D.2d 244, affd 55 N.Y.2d 388; cf., Tucker v Tucker, 55 N.Y.2d 378; Bonfante v Hadar Homes, 84 A.D.2d 570). Similarly, such considerations would justify imposing, as a condition for granting a discontinuance, a requirement that no new action be commenced on the same claim. Here the defendant was prejudiced by the plaintiff's inordinate delay in seeking a discontinuance.
However, once the complaint was dismissed, it was improper for the court to reinstate the arbitration award. The plaintiff's demand for a trial de novo served to vacate the arbitration award (see, Allison v State Painting Decorating Co., 141 Misc.2d 797; Flum v Goldman Band Concerts, 128 Misc.2d 42).
The court awarded the defendant a judgment on its counterclaim for attorney's fees. We decline to disturb the court's determination that the award was authorized under the provisions of the parties' contract. The contract language was clear and explicit that "[r]easonable attorney's fees shall be awarded to the prevailing party in any suit brought under this Contract".
In view of our determination that dismissal of the complaint with prejudice was not erroneous, we do not reach the plaintiff's remaining contention that the denial of his motions to amend the complaint was improper. Mollen, P.J., Rubin, Sullivan and Rosenblatt, JJ., concur.