In this lawsuit challenging the insurance industry's practices in setting premiums for workers' compensation coverage, the motion court appropriately granted defendants' motions to the extent of dismissing plaintiffs' second through eighth causes of action, and entirely dismissing the matter against the nonselling defendants and defendant National Council of Compensation Insurance, and appropriately denied plaintiff American Association of Retired Persons (AARP) a stay of arbitration. As plaintiffs now readily concede, there is insufficient proof of any conspiracy or wrongdoing in the setting of rates for workers' compensation policies by any of the defendants. Moreover, as to plaintiff AARP, their policy contains an arbitration clause applicable to the instant dispute.
However, the court erred in declining to permit plaintiffs voluntarily to discontinue their action. CPLR 3217(b) authorizes a court to grant a motion for voluntary discontinuance "upon terms and conditions, as the court deems proper." While the determination upon such an application is generally within the sound discretion of the court (see, Tucker v. Tucker, 55 N.Y.2d 378, 383), a party ordinarily cannot be compelled to litigate and, absent special circumstances, such as prejudice to adverse parties, a discontinuance should be granted (see,Tucker v. Tucker, supra, at 383; Christenson v. Gutman, 249 A.D.2d 805, 806). No special circumstances have been shown here, especially since the action is still in the pleading stage. Since the action should, therefore, have been terminated through voluntary discontinuance in the appealed order entered January 7, 2000, the motion court's subsequent orders purporting to dismiss plaintiffs' remaining causes with prejudice should be reversed and vacated.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.