Friday, February 15, 2013

Applications for leave to discontinue.

Practice point: An application for leave to discontinue an action without prejudice is addressed to the legal, not the arbitrary, discretion of the court, and thus should be granted unless there are reasons which would justify its denial.

Student note: The general rule is that plaintiff should be permitted to discontinue the action unless defendant would be prejudiced thereby.

Case: Wells Fargo Bank, N.A. v. Fisch, NY Slip Op 00732 (2d Dept. 2013).

Here is the decision.

Tuesday’s issue: Mutual mistake and contract law.