In St. Pierre v. Ostreich (123 A.D.2d 857 [1986]), the Appellate Division, Second Department, permitted, over a dissent, an infant's medical malpractice case to be discontinued without prejudice because the parents were disinclined or unable to proceed with that suit on the infant's behalf. The dissent would have dismissed the action upon the ground that plaintiffs violated a prior conditional order of preclusion by not having served a bill of particulars upon defendants. The majority deferred to Special Term's discretion in permitting the discontinuance without prejudice, despite the potential enforcement of the preclusion order, so as to avoid depriving the infant of the right to recovery.