DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, and the action is discontinued without prejudice.
The determination of a motion for leave to voluntarily discontinue an action without prejudice pursuant to CPLR 3217(b) rests within the sound discretion of the court (see Tucker v. Tucker, 55 N.Y.2d 378, 383). However, in the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted (see Burnham Serv. Corp. v. National Council on Compensation Ins., 288 A.D.2d 31, 32; Citibank v. Nagrotsky, 239 A.D.2d 456, 457; Great W. Bank v. Terio, 200 A.D.2d 608, 609; Brockman v. Turin, 130 A.D.2d 616). Here, the Supreme Court correctly determined that the defendant's rights would not be prejudiced by a voluntary discontinuance of this action.
While a plaintiff should not be permitted to discontinue an action without prejudice for the purpose of circumventing a prior order of the court (see Aison v. Hudson Riv. Black Riv. Regulating Dist., 279 A.D.2d 754, 755; DuBray v. Warner Bros. Records, 236 A.D.2d 312, 314; Angerame v. Nissenbaum, 208 A.D.2d 579), we reject the defendant's contention that such a discontinuance would enable the appellants to evade the adverse consequences of the prior order denying their motion for a preliminary injunction. The denial of a motion for a preliminary injunction is not an adjudication of the ultimate merits of a plaintiff's claims (see Peterson v. Corbin, 275 A.D.2d 35). Thus, under the circumstances of this case, the Supreme Court improperly directed that the discontinuance of the action be "with prejudice."
SMITH, J.P., O'BRIEN, KRAUSMAN and RIVERA, JJ., concur.