GONZALEZ v. KAYE

Defendant claims no prejudice arising from the discontinuance of the action ( see Burnham Serv. Corp. v National Council on Compensation Ins., 288 AD2d 31, 32-33). She contends that plaintiff sought the discontinuance to avoid an adverse determination on defendant's motion for summary judgment ( see e.g. Matter of Baltia Air Lines v CIBC Oppenheimer Corp., 273 AD2d 55, 57, lv denied 95 NY2d 767). However, the record reflects that plaintiff sought a discontinuance on several occasions before defendant made her motion. Moreover, we cannot conclude that defendant would have prevailed on the motion, since, although she sought summary judgment on the merits, discovery was not complete and no depositions had been taken.