Vacatur of plaintiff's notice of discontinuance was properly denied on the ground that even if "`devious or unfair conduct'" may, if "particularly egregious", estop a party from asserting its absolute and unconditional right to discontinue a claim before service of the pleading asserting it, no such showing was made (Giambrone v. Giambrone, 140 A.D.2d 206, 207).
Concur — Ross, J.P., Asch, Rubin, Nardelli and Tom, JJ.