Independent Cement Corporation, Respondent, v. Mario Camelio et al., Appellants

Independent Cement Corporation, Respondent, v Mario Camelio et al., Appellants. [612 NYS2d 951] [MAJORITY] —In an action to recover upon personal guarantees, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Oshrin, J.), dated April 6, 1992, as, upon reargument, adhered to its original determination granting the plaintiffs motion for partial summary judgment dismissing the defendants’ third affirmative defense. Ordered that the order is affirmed insofar as appealed from, with costs. Contrary to the defendants’ contention, the record demonstrates that the prior Nassau County action which sought recovery upon the personal guarantees in question was voluntarily discontinued by court order pursuant to CPLR 3217 (b). Since the judgment which granted the application to discontinue the action against the defendants did not specify otherwise, the discontinuance was without prejudice (see, CPLR 3217 [c]), and did not bar the plaintiff from commencing the instant action to recover upon the guarantees (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3217:15, at 735). Accordingly, the Supreme Court properly dismissed the defendants’ third affirmative defense which asserted that an action on the same guarantees involving the same parties had previously been dismissed by the court. Miller, J. P., Lawrence, Altman and Krausman, JJ., concur.