UMB v. 68 LLC (2026)

Submitted—April 6, 2026

DECISION & ORDER

Q/

In an action to foreclose a mortgage, the defendants 68 Colonial, LLC, Audra Juliano, and Michael Cholowsky appeal from an amended order of the Supreme Court, Nassau County (Eileen C. Daly–Sapraicone, J.), entered April 7, 2025.  The amended order granted the plaintiff's motion pursuant to CPLR 3217(b) to discontinue the action and cancel the notice of pendency and denied, as academic, the motion of the defendants 68 Colonial, LLC, Audra Juliano, and Michael Cholowsky, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the amended order is affirmed, with costs.

In 2023, the plaintiff commenced this action to foreclose a mortgage against the defendants 68 Colonial, LLC, Audra Juliano, and Michael Cholowsky (hereinafter collectively the defendants), among others.  The defendants interposed an answer, asserting various affirmative defenses and counterclaims.  In August 2024, the defendants moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.  The plaintiff opposed the motion.  In October 2024, the plaintiff moved pursuant to CPLR 3217(b) to discontinue the action and cancel the notice of pendency.  The defendants opposed the motion.  In an amended order entered April 7, 2025, the Supreme Court granted the plaintiff's motion and denied, as academic, the defendants' motion.  The defendants appeal.

CPLR 3217(b) permits a voluntary discontinuance of an action by court order “upon terms and conditions, as the court deems proper” (see Deutsche Bank Natl. Trust Co. v Starr, 245 AD3d 888, 890).  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];  U.S. Bank N.A. v. Narain, 223 AD3d 856, 857;  Deutsche Bank Natl. Trust Co. v Holcomb, 178 AD3d 773, 774).  The determination of whether, and upon what terms and conditions, to grant a motion to discontinue an action pursuant to CPLR 3217(b) lies within the sound discretion of the court (see Deutsche Bank Natl. Trust Co. v Starr, 245 AD3d at 890).

Under the particular circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to discontinue the action, as there was no showing that the defendants would be prejudiced by the discontinuance (see U.S. Bank N.A. v. Narain, 223 AD3d at 857;  HSBC Bank USA, N.A. v. Kone, 188 AD3d 836, 838;  Green Tree Servicing LLC v. Shiow Fei Ju, 182 AD3d 840, 842).  In light of the foregoing, the court properly denied, as academic, the defendants' motion, inter alia, to dismiss the complaint insofar as asserted against them (see HSBC Bank USA, N.A. v. Kone, 188 AD3d at 838).

The parties' remaining contentions either need not be reached in light of our determination or are without merit.

GENOVESI, J.P., DOWLING, WAN and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court