Kret v. Gergely — 47 N.Y.2d 990

Majority

p. 990

Jordan Kret, an Infant, by his Father and Natural Guardian, Arthur Kret, et al., Respondents, v Klara Gergely et al., Defendants, and Brookdale Hospital Medical Center, Appellant.

Argued June 7, 1979;

decided July 9, 1979

p. 991

APPEARANCES OF COUNSEL

Frank J. Amabile for appellant.

Peter Overzat, Charles Kramer and Daniel Kramer for respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, on the reasoning of the memorandum at the Appellate Division, to which we add only that to permit a discontinuance without prejudice to be converted into one with prejudice, even after a fact-finding hearing, imports an element of motivation into the infant compromise procedure not contemplated by CPLR 1207 and 1208. Whether the original discontinuance was with or without prejudice, it could not be binding on anyone absent compliance with CPLR 1207 and 1208.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones,

Wachtler and Meyer concur; Judge Fuchsberg taking no part.

Order affirmed, with costs, in a memorandum.