Geraldine Estrada, Petitioner-Appellant, v. 31 LLC NYC (2026)

Final judgment (Daniele Chinea, J.), entered April 3, 2025, modified to limit the award of attorneys' fees to respondents to those incurred in connection with the motion to discontinue, and remanding the matter to Civil Court for a recalculation of such fees; as modified, final judgment affirmed, with $25 costs. Appeal and cross-appeal from order (Frances A. Ortiz, J.), dated October 27, 2022, and amended order (Daniele Chinea, J.), entered April 3, 2025, dismissed, without costs, as subsumed in the appeal from the final judgment.

Civil Court providently exercised its discretion in permitting petitioner to discontinue the harassment proceeding without prejudice (see Tucker v Tucker, 55 NY2d 378, 383 [1982]; U.S. Bank N.A. v Narain, 223 AD3d 856, 857 [2024]). Respondents have not shown substantial prejudice or other improper results so as to require a discontinuance with prejudice (see U.S. Bank Trust, N.A. v Heaney, 240 AD3d 545, 546 [2025]).

Nor did the court abuse its discretion in conditioning the discontinuance upon petitioner's payment of legal fees to respondents (see New York Downtown Hosp. v Terry, 80 AD3d 493 [2011]; Beigel v Cohen, 158 AD2d 339, 340 [1990]). CPLR 3217 (b) permits the Court to grant a motion for voluntary discontinuance "upon terms and conditions", as the Court deems proper. Determination of such a motion is in the Court's sound discretion (see Tucker v Tucker, 55 NY2d at 383).

However, under the circumstances presented, the court improvidently exercised its discretion to the extent of ordering payment of fees from the inception of the proceeding, given that much of the delay in this matter was caused by respondents. We, therefore, limit petitioner's payment of fees to those incurred by respondents in connection with the motion to discontinue (see Matter of Miller v 22 Ericsson Owner LLC, 250 AD3d 659, 659 [2026]; see also Carter v Howland Hook Hous. Co., Inc., 19 AD3d 146, 146-147 [2005]; Sleepy's, Inc. v Best Global Alternative, Ltd., 42 Misc 3d 136[A], 2014 NY Slip Op 50118[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: October 1, 2026