Aurora Loan Servs., LLC v. Hunte

189 A.D.3d 1525

135 N.Y.S.3d 302 (Mem)

AURORA LOAN SERVICES, LLC, respondent,

v.Esther HUNTE, appellant, et al, defendants.

2018-10531

2018-10532

Index No. 473/11

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 2, 2020

December 30, 2020

Esther Hunte, Newburgh, NY, appellant pro se.

McCabe, Weisberg & Conway, LLC, Melville, N.Y. (Kenneth Britt of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Esther Hunte appeals from (1) an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated May 17, 2018, and (2) an order of the same court dated June 5, 2018. The order dated May 17, 2018, insofar as appealed from, granted the plaintiff's motion for leave to discontinue the action without prejudice. The order dated June 5, 2018, denied the motion of the defendant Esther Hunte for leave to renew and reargue her opposition to the plaintiff's motion for leave to discontinue the action without prejudice.

ORDERED that the appeal from the order dated June 5, 2018, is dismissed; and it is further,

ORDERED that the order dated May 17, 2018, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In October 2005, the defendant Esther Hunte executed a note in the sum of $337,840, secured by a mortgage on real property located in Orange County. In January 2011, the plaintiff, as the alleged assignee of the mortgage, commenced this action to foreclose the mortgage, alleging that Hunte had defaulted in making her payments. The plaintiff later moved, inter alia, for leave to discontinue the action without prejudice. In an order dated May 17, 2018, the Supreme Court granted that branch of the plaintiff's motion. Hunte thereafter moved for leave to renew and reargue her opposition to the plaintiff's motion, which the court denied in an order dated June 5, 2018. Hunte appeals from both orders.

" ‘The determination of a motion for leave to voluntarily discontinue an action pursuant to CPLR 3217(b) rests within the sound discretion of the court’ " ( Haughey v. Kindschuh, 176 A.D.3d 785, 786, 109 N.Y.S.3d 415, quoting Wells Fargo Bank, N.A. v. Chaplin, 107 A.D.3d 881, 883, 969 N.Y.S.2d 67 ). "Generally such motions should be granted ‘unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results’ " ( Haughey v. Kindschuh, 176 A.D.3d at 786, 109 N.Y.S.3d 415, quoting Marinelli v. Wimmer, 139 A.D.3d 914, 915, 30 N.Y.S.3d 571 ).

Here, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to discontinue the action without prejudice, as there was no evidence that Hunte would be prejudiced by a discontinuance (see Onewest Bank, FSB...