BRODER v. BRODER

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order affirmed, with costs, and the question certified answered in the affirmative. No complaint or responsive pleading ever having been served or filed in the action commenced in 1979, plaintiff was within her rights to discontinue that action by notice. (CPLR 3217, subd [a], par 1; Battaglia v Battaglia, 59 N.Y.2d 778.)

Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS.