Gansburg v. Gansburg (124 A.D.2d 701, 1986)

We reject the defendant’s contention that he was prejudiced by the discontinuance of the plaintiff’s matrimonial action because the order appealed from did not provide for the return to him of certain items of personal property. "[Ojrdinarily a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted (4 Weinstein-Korn-Miller, NY Civ Prac, par 3217.06)” (Tucker v Tucker, 55 NY2d 378, 383). In light of the pendency of the defendant’s action to recover damages for conversion, which places in issue the plaintiff’s right to possession of all the items and moneys the defendant sought to recover in the matrimonial action, the defendant cannot claim to be prejudiced by the discontinuance of the plaintiff’s action (see, CPLR 3217 [b]). Brown, J. P., Rubin, Lawrence and Kooper, JJ., concur.