Fulton View Realty, LLC v. Reddy

74 Misc.3d 54

161 N.Y.S.3d 688

FULTON VIEW REALTY, LLC, Respondent,

v.Aparna REDDY, Appellant.

2020-697 K C

Supreme Court, Appellate Term, New York, Second Dept., 2, 11, 13 Jud. Dist.

Decided on January 28, 2022

William Leavitt, Esq., New York, for appellant.

Wenig Saltiel, LLP (Dan M. Blumenthal of counsel), Brooklyn, for respondent.

PRESENT: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ.

ORDERED that, on the court's own motion, the notice of appeal is deemed an application for leave to appeal, and leave to appeal is granted (see CCA 1702 [c] ); and it is further,

ORDERED that the order is reversed, without costs, the discontinuance of the proceeding is vacated and the matter is remitted to the Civil Court for further proceedings in accordance with this decision and order.

In this nonpayment proceeding, tenant moved for summary judgment dismissing the petition and for leave to amend her answer and assert a counterclaim, and, upon such leave, for summary judgment on that counterclaim. Rather than opposing tenant's motion, landlord made an oral application to discontinue the proceeding based upon an improper certificate of occupancy (see Multiple Dwelling Law § 302 ). Tenant, having been apprised by landlord's attorney that landlord did not dispute that the certificate of occupancy was improper and of its intention to seek the discontinuance, submitted written opposition to the application during oral argument of landlord's application. Tenant argued that her pending motion for summary judgment should be granted but that, if the court did not grant tenant's motion, any voluntary discontinuance should be conditioned on landlord's payment of attorney's fees and an order directing landlord to correct an HPD violation. In an order entered April 23, 2020, the Civil Court unconditionally granted landlord's application to discontinue the proceeding, purportedly without prejudice to the proposed counterclaim, but without deciding tenant's pending motion for summary judgment dismissing the petition and for leave to amend her answer and assert the counterclaim, and, upon such leave, for summary judgment on that counterclaim. Tenant appeals, arguing that the Civil Court erred in "ignoring the summary judgment motion and discontinuing the case" or, in the alternative, that the discontinuance should have been conditional.

While no appeal as of right lies from the order, which did not decide a motion made by landlord on notice (see CCA 1702 [a] [2] ; Arroyo v. City of New York , 185 A.D.2d 829, 587 N.Y.S.2d 851 [1992] ), we deem the notice of appeal to be an application for leave to appeal and grant tenant's application (see CCA 1702 [c] ).

It is an improvident exercise of a court's discretion to permit a party to discontinue a case "for the purpose of avoiding an adverse order of the court" ( Kaplan v. Village of Ossining , 35 A.D.3d 816, 817, 827 N.Y.S.2d 278 [2006] ; see Matter of Yonkers Firefighters v. City of Yonkers , 165 A.D.3d 816, 86 N.Y.S.3d 100 [2018] ). Therefore, the Civil Court improperly granted landlord's application to discontinue the proceeding without first deciding tenant's pending motion for summary judgment dismissing the petition and for leave to amend her answer and assert a counterclaim, and, upon such leave, for summary judgment on that counterclaim. To the extent tenant argues on this appeal that her motion should have been granted, there is nothing for this court to review since it remains pending and undecided, including the branch thereof seeking to amend her answer to, among other things, assert a counterclaim (see Bibbo v. Arvanitakis , 145 A.D.3d 656, 43 N.Y.S.3d 432 [2016] ; Born To Build, LLC v. Saleh , 139 A.D.3d 654, 31 N.Y.S.3d 545 [2016] ).

Accordingly, the order is reversed, the discontinuance of the proceeding is vacated and the matter is remitted to the Civil Court for further proceedings in accordance with this decision and order.

TOUSSAINT and GOLIA, JJ., concur.

WESTON, J.P., dissents and votes to affirm the order of the Civil Court in the following memorandum:

As an initial matter, I disagree with the majority's decision to deem the notice of appeal as an application for leave to appeal and would have dismissed the appeal. However, in view of the majority's decision, with which I strongly disagree, I am compelled to address the merits of the appeal.

At issue on this appeal is whether the court improvidently exercised its discretion in granting landlord's request to discontinue the action without deciding tenant's pending motion for, among other things, summary judgment on her counterclaim. Under the circumstances of this case, I would conclude that it did not.

The decision whether to grant an application to discontinue an action is committed to the sound discretion of the court (see Tucker v. Tucker , 55 N.Y.2d 378, 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050 [1982] ; Aurora Loan Servs., LLC v. Hunte , 189 A.D.3d 1525, 1526, 135 N.Y.S.3d 302 [2020] ). Such applications are generally granted, unless "special circumstances" exist to warrant the application's denial (see Tucker v. Tucker , 55 N.Y.2d at 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050 ). Thus, where the movant seeks to avoid the consequences of a prior order or a potentially adverse determination, or where the opposing party would be prejudiced by the discontinuance, an application for a discontinuance should be denied (see Aurora Loan Servs., LLC v. Hunte , 189 A.D.3d at 1526, 135 N.Y.S.3d 302 ; Baez v. Parkway Mobile Homes, Inc. , 125 A.D.3d 905, 908, 5 N.Y.S.3d 154 [2015] ). Consideration should also be given to the stage of the proceedings at which the request for the discontinuance is made: "the later the stage, the greater should be the court's scrutiny of the moving party's motives" ( Phoenix Mech. Corp. v. London , 38 Misc. 3d 45, 47, 959...