Appellate Division of the Supreme Court of New York, Second DepartmentJun 27, 1983
95 A.D.2d 845 (N.Y. App. Div. 1983)

June 27, 1983

In a matrimonial action, plaintiff appeals from an order of the Supreme Court, Nassau County (Vitale, J.), entered January 7, 1983, which denied her motion to discontinue the action with prejudice. Order reversed, on the law, with costs, motion granted and action discontinued, with prejudice to the institution of a subsequent matrimonial action based upon any conduct which might have been the basis for an action prior to January 7, 1983. Plaintiff's motion for leave to discontinue her action, with prejudice, should have been granted upon the terms set forth herein, and the failure to do so constituted an abuse of discretion as a matter of law ( Cogan v. Cogan, 90 A.D.2d 491). Lazer, J.P., Mangano, Thompson and Gulotta, JJ., concur.