WILMINGTON SAVINGS FUND SOCIETY FSB v. Francine Moore, etc., appellant. (2023)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Francine Moore appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated July 27, 2021.  The order, inter alia, granted the plaintiff's motion for leave to voluntarily discontinue the action and to cancel a notice of pendency.

ORDERED that the order is affirmed, without costs or disbursements.

The plaintiff commenced this action against the defendant Francine Moore (hereinafter the defendant), among others, to foreclose a mortgage on certain property located in Bay Shore.  In lieu of answering the complaint, the defendant moved, inter alia, to dismiss the complaint insofar as asserted against her on various grounds.  The plaintiff subsequently moved for leave to voluntarily discontinue the action and to cancel a notice of pendency.  The defendant opposed the motion.  In an order dated July 27, 2021, the Supreme Court granted the plaintiff's motion, without prejudice, and directed the County Clerk to cancel the notice of pendency.  The defendant appeals.

“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” (Wells Fargo Bank, N.A. v. Chaplin, 107 A.D.3d 881, 883, 969 N.Y.S.2d 67;  see Emigrant Mtge. Co., Inc. v. Carrera, 126 A.D.3d 853, 854, 6 N.Y.S.3d 88).  “In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted” (Wells Fargo Bank, N.A. v. Chaplin, 107 A.D.3d at 883, 969 N.Y.S.2d 67 [internal quotation marks omitted];  see Emigrant Mtge. Co., Inc. v. Carrera, 126 A.D.3d at 854, 6 N.Y.S.3d 88).  Here, the defendant made no showing of special circumstances (see Federal Natl. Mtge. Assn. v. Biggs, 172 A.D.3d 1322, 99 N.Y.S.3d 667;  Emigrant Mtge. Co., Inc. v. Carrera, 126 A.D.3d at 854, 6 N.Y.S.3d 88).  Additionally, contrary to the defendant's contention, the record does not contain any grounds for discontinuance of the action with prejudice (see Chase Home Fin., LLC v. Sulton, 185 A.D.3d 646, 647, 124 N.Y.S.3d 866;  cf.  GMAC Mtge., LLC v. Bisceglie, 109 A.D.3d 874, 973 N.Y.S.2d 225).

Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to voluntarily discontinue the action without prejudice and to cancel the notice of pendency.

The defendant's remaining contentions concerning the merits of her motion, inter alia, to dismiss the complaint insofar as asserted against her are not properly before the Court, as the order appealed from did not decide that motion (see Horowitz v. 763 Eastern Associates, LLC, 125 A.D.3d 808, 5 N.Y.S.3d 118).

CONNOLLY, J.P., GENOVESI, VOUTSINAS and WAN, JJ., concur.