DBW TL HOLDCO 2014 LLC v. KIRK (2026)

DECISION & ORDER

In an action to foreclose a tax lien, the plaintiff appeals from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), dated September 28, 2022.  The order denied the plaintiff's motion to discontinue the action insofar as asserted against the defendant Kathleen M. Kirk and to amend a judgment of foreclosure and sale of the same court (Julianne T. Capetola, J.) entered March 19, 2019, accordingly.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the plaintiff's motion to discontinue the action insofar as asserted against the defendant Kathleen M. Kirk and to amend the judgment of foreclosure and sale accordingly is granted.

The plaintiff commenced this action to foreclose a tax lien against, among others, the defendants Kathleen M. Kirk and Robert P. Kirk, Jr. The Supreme Court entered a judgment of foreclosure and sale.  Thereafter, the plaintiff and Kathleen entered into a stipulation of settlement.  The plaintiff moved to discontinue the action insofar as asserted against Kathleen and to amend the judgment of foreclosure and sale accordingly.  In an order dated September 28, 2022, the court denied the plaintiff's motion.  The plaintiff appeals.

“A motion for leave to discontinue an action is addressed to the sound discretion of the court, and generally 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” (U.S. Bank N.A. v. Giraldo, 230 AD3d 1369, 1370 [internal quotation marks omitted];  see Matter of Blauvelt Mini–Mall, Inc. v Town of Orangetown, 158 AD3d 678, 679).  Here, since the plaintiff and Kathleen have reached a settlement and there was no showing of substantial prejudice or other improper results arising from the proposed discontinuance of the action insofar as asserted against Kathleen, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion (see KNG Realty N.Y. Co., LLC v. Halpern, 233 AD3d 849, 850;  cf.  U.S. Bank N.A. v. Giraldo, 230 AD3d at 1370).

Accordingly, we reverse the order and grant the plaintiff's motion.

Motion by the respondent, inter alia, to dismiss the appeal, in effect, on the ground that the appellant is no longer aggrieved.  By order of this Court, dated June 4, 2025, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the branch of the motion which is to dismiss the appeal, in effect, on the ground that the appellant is no longer aggrieved is denied.

DILLON, J.P., FORD, VOUTSINAS and MCCORMACK, JJ., concur.