Nationstar Mortg., LLC v. Dalton

201 A.D.3d 726

156 N.Y.S.3d 910 (Mem)

NATIONSTAR MORTGAGE, LLC, etc., respondent,

v.Allison DALTON, etc., appellant, et al., defendants.

2018–14999

Index No. 502214/18

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

Argued—November 5, 2021

January 12, 2022

Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for appellant.

McCalla Raymer Leibert Pierce, LLC, New York, NY (Margaret Stefandl of counsel), for respondent.

HECTOR D. LASALLE, P.J., COLLEEN D. DUFFY, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Allison Dalton appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated November 1, 2018. The order granted that branch of the plaintiff's motion which was pursuant to CPLR 3217(b) for leave to discontinue the action without prejudice.

ORDERED that the order is affirmed, with costs

In February 2018, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Allison Dalton (hereinafter the defendant). In March 2018, the defendant filed an answer and a note of issue and certificate of readiness. In September 2018, the plaintiff moved, inter alia, pursuant to CPLR 3217(b) for leave to discontinue the action without prejudice. The defendant opposed the motion, arguing, inter alia, that any discontinuance should be with prejudice. In an order dated November 1, 2018, the Supreme Court granted that branch of the plaintiff's motion which was for leave to discontinue the action without prejudice. The defendant appeals.

The determination of a motion pursuant to CPLR 3217(b) for leave to discontinue an action without prejudice is within 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 ; Aurora Loan Servs., LLC v. Hunte, 189 A.D.3d 1525, 1526, 135 N.Y.S.3d 302 ). "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 785, 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 that branch of the plaintiff's motion which was for leave to discontinue the action without prejudice, as there was no showing of...