Battaglia v. Battaglia

Mahoney, P. J., and Levine, J.,

dissent and vote to reverse in the following memorandum by Levine, J. Levine, J. (dissenting). Undeniably, neither a complaint nor answer was ever served in this action. Therefore, under the clearly expressed language of CPLR 3217 (subd [a], par 1), plaintiff had the absolute and unconditional right to discontinue her action without seeking judicial permission through a court order, merely through the service of the notice upon defendant. This drastically distinguishes the instant case from Pollack v Pollack (56 NY2d 968), Zuckerman v Zuckerman (56 NY2d 636),…