New York Mortgage Trust, Inc., appellant, v. Adem Dasdemir, et al., respondents, et al., defendants.

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

New York Mortgage Trust, Inc., appellant, v. Adem Dasdemir, et al., respondents, et al., defendants.

2013–01583 (Index No. 18194/11)

Decided: April 2, 2014

MARK C. DILLON, J.P. JOHN M. LEVENTHAL CHERYL E. CHAMBERS HECTOR D. LASALLE, JJ. Deutsch & Schneider, LLP, Glandale, N.Y. (Doris Barkhordar of counsel), for appellant. Kenneth S. Pelsinger, Levittown, N.Y., for respondents.

Submitted—March 12, 2014

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Schack, J.), dated December 19, 2012, as, upon granting its motion pursuant to CPLR 3217(b) to discontinue the action, did so “with prejudice.”

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the discontinuance of the action is “without prejudice.”

In general, absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice (see CPLR 3217[c];  Tucker v. Tucker, 55 N.Y.2d 378, 383–384;  American Tr. Ins. Co. v. Roberson, 114 AD3d 821;  Wells Fargo Bank, N.A. v. Chaplin, 107 AD3d 881, 883;  Blackwell v. Mikevin Mgt. III, LLC, 88 AD3d 836, 837).   Here, there was no showing of any such special circumstances.   Contrary to the respondents' contention, there is no evidence in the record that the action was settled, discontinued, or dismissed on the merits (see generally Matter of AutoOne Ins. Co. v Valentine, 72 AD3d 953, 955).   Rather, it is undisputed that the settlement reached by the parties was a forbearance agreement.   Accordingly, the action should have been discontinued without prejudice.

DILLON, J.P., LEVENTHAL, CHAMBERS and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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