State of New York, Respondent, v. Vigliotta Brothers Real Estate, Inc., et al., Defendants, and Sun Mark Industries, Inc., et al., Appellants. (And Another Action.)

State of New York, Respondent, v Vigliotta Brothers Real Estate, Inc., et al., Defendants, and Sun Mark Industries, Inc., et al., Appellants. (And Another Action.) [753 NYS2d 389] [MAJORITY] —In an action pursuant to Navigation Law article 12, the defendants Sun Mark Industries, Inc., Sun Oil Company, Inc., Sun Company, Inc., and Sun Refining and Marketing, Inc., appeal from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated August 21, 2001, as, upon granting the plaintiffs motion to discontinue all causes of action asserted against them, did so “without prejudice.” Ordered that the order is modified by deleting from the provision thereof granting the plaintiffs motion to discontinue the words “without prejudice,” and substituting therefor the words “with prejudice”; as so modified, the order is affirmed insofar as appealed from, with costs to the appellants. The Supreme Court improvidently exercised its discretion in granting the plaintiffs motion to discontinue all causes of action asserted against the appellants “without prejudice” (see Brenhouse v Anthony Indus., 156 AD2d 411; Valladares v Valladares, 80 AD2d 244, affd 55 NY2d 388). Krausman, J.P., Goldstein, Townes and Rivera, JJ., concur.