BANK OF NEW YORK MELLON v. PORTZ (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Linda Portz appeals from an order of the Supreme Court, Nassau County (Sarika Kapoor, J.), dated May 16, 2024. The order, insofar as appealed from, granted the plaintiff's motion pursuant to CPLR 3217(b) for leave to discontinue the action without prejudice and to cancel the notice of pendency.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In May 2018, the plaintiff commenced this action against, among others, the defendant Linda Portz (hereinafter the defendant) to foreclose a mortgage on certain real property located in Nassau County. In October 2023, the plaintiff moved pursuant to CPLR 3217(b) for leave to discontinue the action without prejudice and to cancel the notice of pendency. The defendant opposed the motion. By order dated May 16, 2024, the Supreme Court, inter alia, granted the plaintiff's motion. 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 (see Wilmington Sav. Fund Socy., FSB v Moore, 220 AD3d 656, 656–657; HSBC Bank USA, N.A. v Kone, 188 AD3d 836, 837). In general, a motion for a voluntary discontinuance should be granted without prejudice absent a showing of special circumstances, such as where 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 (see CPLR 3217[c]; Tucker v Tucker, 55 NY2d 378, 383–384; U.S. Bank N.A. v Narain, 223 AD3d 856, 857). Here, there was no showing of substantial prejudice or other improper results arising from the proposed discontinuance of the action (see U.S. Bank N.A. v Narain, 223 AD3d at 857; HSBC Bank USA, N.A. v Kone, 188 AD3d at 838).

Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff's motion pursuant to CPLR 3217(b) for leave to discontinue the action without prejudice and to cancel the notice of pendency (see U.S. Bank N.A. v Giraldo, 230 AD3d 1369, 1370; U.S. Bank N.A. v Narain, 223 AD3d at 857).

The defendant's remaining contention is not properly before this Court.

CONNOLLY, J.P., CHAMBERS, VENTURA and OTTLEY, JJ., concur.